Most Read
Image 01 Image 02 Image 03

The Ahmaud Arbery Case as Zimmerman-Trayvon Martin Redux

The Ahmaud Arbery Case as Zimmerman-Trayvon Martin Redux

Media narratives must be questioned, and the answers may not please a lot of people

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

Hey folks,

It’s been a while, glad to be back, hope everybody is doing well, and in the interests of efficiency let us all presume that suitable compliments and offerings of adult beverages have been made.

I expect most of you are aware of the Ahmaud Arbery case down in Georgia, in which two white men, Greg McMichael and Travis McMichael have been charged with felony murder for the shooting death of Arbery, a black male.

The popular media narrative of this event is along the lines of “white supremacists murder black man for the crime of jogging.”  If you’re getting your understanding of this event from the mainstream media you probably believe that narrative to have at least some resemblance to what actually happened, making this whole affair unquestionably an example of racially motivated murder.

As those of you familiar with my work might have guessed, I suggest that there exists an entirely different narrative altogether, a narrative based on actual facts and actual law rather than emotive projection and outrage, and one that is sufficient consistent with the McMichaels acted lawfully that it is unlikely (though possible) that their prosecution for felony murder can overcome their anticipated legal defense of self-defense beyond a reasonable doubt.

I know, I know: racist. Whatever. Just a small-town lawyer, folks, doing here exactly what I did during the Zimmerman trial–sharing the legal and factual truth as honestly, and with as much informed insight, as I can bring to the task.

Incidentally, the parallels between this case and the Zimmerman case are many.  Remember how the Zimmerman 911 recording was re-played by the media in modified form in order to suggest that Zimmerman was of a racist mindset?  Yep, I’m seeing exactly the same being done with the 911 recordings in this Arbery case.

Remember how in the Zimmerman case the photos shown of Trayvon Martin were invariably him as a cherubic 13-year-old, happily smiling, rather than the young man in the wife beater giving the camera the finger while shrouded in apparent marijuana smoke and wielding pistols, while at the same time the photos of Zimmerman were invariably his unflattering mug shot?  Yep, same here, the widely published photo of preference for Arbery is a smiling, suit-wearing, young man–not the mug shot of him with a 1,000 yard stare, a photo available but not chosen by the media.  The McMichaels, of course, are represented by their mug shots.

Remember how in the Zimmerman case the claim was that Trayvon Martin was murdered for the “crime” of being black while wearing a hoodie? Or or the “crime” of being black and having Skittles and iced tea?  Well, here we have Ahmaud Arbery allegedly murdered for the “crime” of  being black while jogging.

Yet in both cases there is zero evidence–I mean that literally, zero evidence of any racist motivation on the part of either Zimmerman or the McMichaels. The Eric Holder Department of Justice even sent down teams of FBI Agents to thoroughly investigate the Sanford FL condo complex in which the shooting took place and in which Zimmerman lived, in a desperate search for evidence of racism on the part of Zimmerman that could justify a Federal prosecution of him for hate crimes.

They found nothing.  And, so far, nothing of a racist nature has been found re: the McMichaels, either.

Remember how the local police and district attorneys investigated the Zimmerman case, concluded it was lawful self-defense, but then were shoved aside by the state bringing in an outside prosecutor to lead a case for second-degree malice murder against Zimmerman? Same here, with a now fourth prosecutor on the case, assigned at the state level, who filed charges of felony murder against the McMichaels after local authorities had determined their conduct was lawful.

Remember how the purportedly racist nature of the Zimmerman case was so unquestionable that anyone who suggested an alternative, non-racist narrative to explain what had occurred was immediately condemned as a racist themselves? To doubt the accepted narrative of Zimmerman was to be racist oneself, period. Yep, I’m seeing the same exact dynamic here.

Remember all the misinformation and disinformation created around the Zimmerman case? For example, the big lie that Zimmerman got out of his car after being told by police not to do so? That lie remains so widely believed that when I ask for a show of hands in the classes I teach at the FBI Academy of those who believe that lie, most of the class does so without hesitation.

Yep, we’re seeing the same types of misinformation and disinformation in this case. Arbery didn’t steal anything so he can’t have committed burglary. The McMichaels couldn’t have known with certainty that Arbery was a fleeing felon, so they can’t have been justified in pursuing him. Arbery only entered the home unlawfully in order to get a drink of water. All of that, and much more, consists largely of lies, irrelevancies, or the combination of irrelevant lies.

Why all the similarities? Well, is it possible the similarities exist because the same people are behind the apparent propaganda campaign suddenly launched behind this Arbery case a full two months after the events took place (much as the analogous campaign targeting Zimmerman was not launched until weeks after his successful defense against Martin’s attack)?

I’m speaking, of course, of Benjamin Crump, Al Sharpton, their associates, and their willing minions in the media.  Same crew, same playbook, same propaganda. They wrote that playbook in Zimmerman, and had so much success they re-deployed it for Michael Brown, for Freddie Gray, and innumerable other revenue-generating opportunities since.  And they appear to be similarly engaged once again here.

All of that, of course, is just my personal view of this Ahmaud Arbery case from a 30,000 foot level, but this wouldn’t be a Law of Self Defense authored post if I didn’t include some actual legal analysis, so let’s get to that.

In particular I’d like to share with you two videos I made about the case that focused on the irrelevancy of citizens arrest law to this case. In the first week or two that this case hit the news hard there was much discussion of Georgia’s remarkably broad citizens arrest law, and its possible implications for this case (including in-depth writing on those issues by yours truly).

Upon closer inspection, however, it became obvious that citizens arrest law, was likely not at all relevant to this case, at least based on the evidence currently available.

Entertainingly, to my knowledge I was the first legal expert to raise the point that citizens arrest law was likely irrelevant to this case in my video produced and published on Thursday, May 14, 2020.  The following day, Professor Jacobson was kind enough to share with me a press release from Professor John Banzhaf of George Washington University School of Law in which he makes a similar point.  I covered that press release, and added some of my own further thoughts, in a follow up video I produced an published on Friday, May 15, 2020.

Both of my videos just mentioned are embedded below for your viewing pleasure, as well as Professor Banzhaf’s press release.

VIDEO: For Your Consideration: May 14, 2020

VIDEO: Citizens Arrest, Part 2: May 15, 2020

Professor Banzhaf Press Release: May 15, 2020

I’m not sure how much writing on this Arbury case I’ll be doing here at Legal Insurrection. I’ve been made more than welcome, as usual, for which I’m as always grateful, but I find my time increasingly constrained by other commitments.

Should something big happen with the case I imagine I’ll post about it here. For more modest updates, however, you might consider checking in at my Law of Self Defense Blog, where we’ve set up a dedicated page to aggregate my posts on the Ahmaud Arbery case:

http://lawofselfdefense.com/arbery

Until next time, stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

The msm are no more than political carnival barkers, shouting their narratives without any regard to facts or the truth. These are the same people who love to decry any “Rush to judgement” when one of their own is caught up in wrongdoing or scandal.

Any comment on the assertion that “innocence”, as a component of a self-defense, defense is maintained if the initial aggression was not intended to provoke a potentially deadly response requiring the us of deadly force. Seems contrary to my understanding of legal self-defense where innocence must be “regained”, for example by walking away from the confrontation, rather than the motivation of the initial aggression.

    Mac45 in reply to SHV. | May 17, 2020 at 11:02 pm

    There are two components to the use of force in lawful self defense in most states today.

    The first component is whether one is actually acting in self defense or not. In order to lawfully use force [or in some states the threat of using force] in self defense, the force has to be applied to prevent an in-progress physical attack or prevent what a reasonable man would reasonably believe was an imminent physical attack.

    The second component is what level of physical force can be used in lawful self defense. Usually, deadly force can only be used to counter a threat which uses a deadly weapon or which is likely to result in death or serious bodily harm, if not countered using potentially deadly fore.

    Now, if a person initiates an attack, without having sufficient grounds to justify the use of force in self defense, he commits a criminal act. However, if he breaks off the attack and retreats, and no reasonable belief, that an attack is imminent, exists, the initial attacker regains the ability to use force in self defense, if attacked by the victim of the first attack. Force can only be lawfully used, in self defense, to thwart an attack or imminent attack.

    I hope that helps.

    VetHusbandFather in reply to SHV. | May 18, 2020 at 6:45 am

    This is where I think this case splits from the Trayvon Martin case. He was actively being chased down by men with shotguns pointed at him in a public street. This makes the McDaniels the clear aggressor or instigator as documented in the video. Many people have argued the same was true for Trayvon Martin, and it may have been, but according to Zimmerman, he was simply walking back to his car when TM jumped him. There is no evidence to counter GZ’s claim, in fact the circumstantial evidence bolsters it. On the other hand there is no evidence to back the prosecutions claims that GZ was the aggressor and TM was simply defending himself. GZ has presumption of innocence so lacking any proof that TM was defending himself, his highly plausible account stands. But in this case we have all that evidence. Arbery was far from the scene of the initial crime, and you had two men approaching in a way that any reasonable person would assume was a threat. Further, the use of a deadly weapon was an escalation of force by the McDaniels here, a key part of the GZ case is that he perceived a reasonable threat to his life from TM smashing his head against the ground (backed by the injuries to his head and face). Here you are going to have to make the argument that McDaniels felt he was losing control of his weapon in order to justify that escalation. That certainly does not appear to be the case from the video.

    I realize downvotes are probably coming. But keep in mind, I 100% believe that the courts got the GZ case correct. I’d be very careful about defending this case though, Branca is drawing some parallels, but there are also a lot of differences with this case.

      VetHusbandFather in reply to VetHusbandFather. | May 18, 2020 at 7:51 am

      One other note: The media coverage of this is bullshit. This isn’t a modern day lynching, this isn’t an example of profiling, this isn’t a bunch of rednecks hunting blacks. At this point these men were clearly pursuing a legitimate suspect, and he wasn’t simply a suspect because of his race. I don’t think they had any intention of this incident ending this way. I suspect they were very much hoping Arbery would surrender at gun point and this would be over. But that doesn’t mean they are innocent either.

        Tom Servo in reply to VetHusbandFather. | May 19, 2020 at 9:34 am

        The problem for the McMichael’s is this: even if EVERY bad thing they said about Arbery is true, even if Arbery grabbed the gun and caused it to fire (although the video is unclear) this is STILL a slam dunk case of Felony Murder against the McMichael’s. Felony Murder is a very harsh charge, most “progressive” states have dropped it, but it is still on the books in most southern states, especially Georgia.

        Most of the people I have seen writing in favor of the McMichael’s have no concept of what Felony Murder is, or why it applies to both of them here. Simply put, under Georgia State Law, everything needed to convict them is in that video. Nothing else matters, and no intent is required, in a felony murder case.

          “this is STILL a slam dunk case of Felony Murder against the McMichael’s.”

          No. And conclusory statements are neither argument nor reasons.

          “Simply put, under Georgia State Law, everything needed to convict them is in that video.”

          I see no criminal conduct by the McMichaels in that video, so again, no.

          “Nothing else matters, and no intent is required, in a felony murder case.”

          Of course intent is required, intent to commit the underlying criminal act that is the predicate for the felony murder charge.

          Oofah.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          Tom Servo in reply to Tom Servo. | May 19, 2020 at 9:51 am

          Well Andrew, I hope you’re up to coming back and admitting you were wrong after their convictions. Which I’ll be glad to do if they aren’t.

          You over-estimate my interest in you. No offense. 🙂

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          Tom Servo in reply to Tom Servo. | May 19, 2020 at 9:55 am

          I should add, brandishing a weapon in public against an unarmed person is prima facie evidence for the intent required for Aggravated Assault. You should know that criminals are convicted on that basis and nothing else all the time.

          Add a dead body, you have Felony Murder.

          MarkSmith in reply to Tom Servo. | May 19, 2020 at 1:13 pm

          Yea, I think it is going to be Aggravated Assault with the gun accidentally discharging and killing Arbrey. Wrongful death by McMichael will be like 2M in civil damages. McMichael made poor judgement. Don’t think murder will stick.

      “He [Arbery] was actively being chased down by men with shotguns pointed at him in a public street.”

      I’m unaware of any evidence of the McMichaels pointing guns at Arbery until he is charging at them. At that point, they are not chasing anybody, they are literally parked in the street, Travis McMichael standing beside the tuck, Greg McMichael in the bed of the truck.

      The McMichaels are, at this critical moment of the confrontation, static. The only person moving is Arbery, and he is moving TOWARDS the McMichaels.

      Further, the McMichaels truck obviously does not “block” Arbery, as he simply runs right past the vehicle (before turning sharply and viciously attacking Travis McMichael).

      If you are aware of evidence of the McMichaels pointing guns at Arbery prior to the point at which Arbery charges at them, you’ll have to share it with us, because I’ve not seen it.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

        Scrape in reply to Andrew Branca. | May 18, 2020 at 11:15 am

        It’s tough for me to see how the unarmed guy, Arbery, could be perceived as ATTACKING the two guys who had chased him down and were holding guns on him, such that they now get to claim self-defense.

        I agree there’s no obvious evidence of a racial motive, but so what? The fact that it may not have been racial doesn’t mean the gunmen shouldn’t be prosecuted and punished for killing somebody on the street because they wanted to be a cowboy or something. Let’s not lose all perspective here. Normal people don’t do this shit, and they shouldn’t defend it, either.

          “It’s tough for me to see how the unarmed guy, Arbery, could be perceived as ATTACKING the two guys who had chased him down and were holding guns on him, such that they now get to claim self-defense. ”

          “Holding guns on him” is not a legally useful term, it’s emotive projection by you.

          The McMichaels were holding guns, and that’s perfectly lawful under GA’s open carry law.

          If they were explicitly threatening Arbery with those guns, you’ll have to show me evidence of that, because I don’t see any pointed guns until Arbery is charging Travis McMichael–and given the viciousness of Arbery’s attack, a pointed gun at that point seems perfectly appropriate self-defense.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          Tom Servo in reply to Scrape. | May 19, 2020 at 9:42 am

          I believe the legal term would be “Brandishing a Weapon”, which is what the younger McMichael is seen doing with his shotgun in the video. Also, they initiated the contact, by blocking Abery in with their trucks. Those two fact together are enough to make their action Aggravated Assault (aka Assault with a Deadly Weapon) under Georgia State Law, and they have in fact now been charged with that. Remember, Assault is the Threat, battery is the actual striking.

          Aggravated Assault is a Felony under Georgia State Law, and here is where the Felony Murder charge comes into play: If you are involved in a commission of a Felony, and ANY person dies for ANY reason in the chain of events that began with your felonious action, then you are Guilty of Felony Murder. All the DA needs to do is show evidence of a Felony (Aggravated Assault) and a Dead Body. Slam Dunk Conviction.

          just fyi, one of the most common uses of Felony Murder can be when 2 partners rob a store; a cop arrives, shoots one of the men dead, captures the other. The Cop of course will not be charged, but the captured perp will be charged with Felony Murder for his partner’s death, because that death was a consequence of his felonious actions. See how intent has no part at all in this crime?

          “I believe the legal term would be “Brandishing a Weapon”, which is what the younger McMichael is seen doing with his shotgun in the video.”

          All Travis McMichael is doing with the firearm prior to Arbery’s charge is holding the weapon, which is perfectly lawful under Georgia’s open carry law. Brandishing is more than mere holding, it is something done AT somebody. There is no point prior to Arbery’s charge where Travis McMichael points the weapon at Arbery.

          So, wrong again.

          “Also, they initiated the contact, by blocking Abery in with their trucks.”

          “Initiating the contact” is not a crime, and so cannot be the basis for an assault charge.

          They also did NOT “block Arbery in with their truck” because Arbery simply ran right past the truck–before swerving left to attack Travis McMichael.

          “Those two fact together are enough to make their action Aggravated Assault (aka Assault with a Deadly Weapon) under Georgia State Law, and they have in fact now been charged with that.”

          As noted, your “facts” are not “facts” so they don’t make anything Aggravated Assault. Also, I doubt any of us want to live in a society in which a criminal charge is the same thing as a finding of criminal guilt.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

          Mac45 in reply to Scrape. | May 19, 2020 at 12:03 pm

          Attacked is exactly what Arbery did. He charged at Travis McMichael,in an aggressive manner, and made physical contact in an attempt to gain control of the shotgun. This constitutes a physical attack. And is a violation of law to which self defense is a defense. If lawful self defense exists, then the offensive attack becomes an defensive attack and is lawful.

        3525Tex in reply to Andrew Branca. | May 18, 2020 at 2:38 pm

        Andrew, reports today are saying that the chase video is much longer than what has been shown so far. AAMOF it is at least 4 minutes long, so the McMichaels were pursuing Arbery for at least that time, and possibly longer.

        I am not somebody that thinks Arbery was just a “jogger” in the neighborhood, but he had to be getting tired after being pursued that long. Does this change anything in your view?

          Andy in reply to 3525Tex. | May 18, 2020 at 6:17 pm

          I’ve caught tweakers casing my area in slow moving cars and have followed at a distance while they knowingly try to drive around a lose me. I just get the plate numbers/pics and pass them on to a deputy as this sort of drama is not welcome in my life. Usually the episode is enough for them to look for an easier neighborhood and to tell all their buddies to stay the eff out too.

          Also since watching ASP (who I think has interviewed Branca a time or two), I’ve gotten better about keeping the jerk spray handy. It’ll take the starch right out of their jammies.

          What if they were? That’s not unlawful.

          I guess I don’t understand your point.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC

        James B. Shearer in reply to Andrew Branca. | May 18, 2020 at 4:14 pm

        “The McMichaels are, at this critical moment of the confrontation, static. …”

        I don’t think this is quite right. It appears to me that as Arbery runs around the right of the truck Travis moves forward and to the right around the left front corner of the truck (arguably in an attempt to block Arbery). It is hard to be sure of movement forward and back but at the 9 second mark of the LiveLeak video Travis is definitely several feet to the left of the yellow center line and at the 15 second mark (when the first shot is fired) he definitely is just to the right of the center yellow line. If Travis had stayed in his original position I doubt Arbery would have tried to grab the gun.

          Char Char Binks in reply to James B. Shearer. | May 21, 2020 at 11:25 pm

          It’s unlikely that Travis could see Arbery when he juked around the truck. Arbery was in the left lane of the road as he approached the truck, and Travis was walking slowly in front of the truck toward the right shoulder, probably expecting to be on the opposite side of the road from Arbery by the time he ran past, but suddenly found himself in a life-or-death struggle for the gun.

      I watched all the videos and there is no video of the McMichaels aiming their guns at Arbery. Even when Arbery attacks and tries to take the shotgun, McMichael doesn’t shoot him until he grabs the gun. McMichael is holding the gun, barrel down, which is legal. The pistol doesn’t come out until they are fighting for the shotgun. Arbery could have gone in a number of directions, but decides to come around the truck and attack and try to take the shotgun. His irrational actions caused him to be killed.

      I agree with you there. We don’t have video from before the confrontation but the scene starts with a truck with a guy standing in the bed pointing at Arbery stopped in a way that blocks Arbery’s path.

      Personally, I am curious if Arbery had wrestled the shotgun away and shot the two McMichaels would he get the same treatment and presumption of innocence based on Stand Your Ground.

        The McMichaels truck was clearly NOT “blocking” Arbery, because Arbery simply ran right past the truck, before then swerving left to charge Travis McMichael. There was nothing to prevent Arbery continuing his forward progress.

        The legal analysis of the hypothetical where Arbery kills the McMichaels is not a particularly complicated one, but I’ve some serious motorcycling to do today, so I’ll leave that to your own interests.

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

        inspectorudy in reply to Xmas. | May 18, 2020 at 10:39 am

        It is simply amazing that you and I saw the same video! The truck was in the road and could have easily been walked around. In fact, that’s exactly what Arbery did. He not only walked around it but attacked a man holding a shotgun that was not pointing it at him. Then he grabs the barrel of the gun and proceeds to hit the guy with his fist! Who is the aggressor? I live in GA and I lawfully can stop a person whom I believe to have committed a crime. I do not expect to be attacked just for asking someone to stop and wait for me to ask them questions. I wouldn’t use a gun but if I had stopped Arbery without one I can see that he would have probably attacked me.

          Tom Servo in reply to inspectorudy. | May 19, 2020 at 9:46 am

          Under Georgia State Law, the men who bracketed him with two trucks, and who then brandished the only weapon at the scene, are the legal aggressors. There’s not even a grey area on this one – as soon as that gun is seen in the video, before anything else happens, that meets the legal definition of Aggravated Assault on the part of the McMichaels.

          Was Arbery foolish and wrong to charge them? Obviously, that got him killed. But the McMichael’s are still guilty of Felony Murder in his death. Legally, this is not even a close call under Georgia Law.

      According to Z, this is what transpired as he was walking after losing sight of Martin. He was walking along the sidewalk, in the general direction of his car, when Martin approached and demanded to know why Zimmerman was following him. Zimmerman stated that he reached into his pocket to remove his cell phone to call police and Martin punched him in the face. At this point, given the circumstances of Zimmerman following Martin, Martin could have mantained a valid self defense claim that he thought that Zimmerman was reaching for a weapon, as he could not determine what thee bulge in Zimmerman’s pocket was. Remember this as it is important.

      Now, having struck Zimmerman and knocked him to the ground, Martin would most logically retreated [run away] if he thought that Zimmerman was armed. He did not. Instead he straddled Zimmerman’s prone body and beat him about the face and head for the next 45 seconds to a minute, causing Zimmerman’s head to strike the pavement of the sidewalk. This is what changed the situation entirely. Because of the nature of the continuing attack as well as its duration, a reasonable man would most likely reasonably believe that if the attack continued, it would resultin death or great bodily harm and that, because of the position of the two people involved, Zimmerman was forced to use deadly force to stop the attack.

      There was no evidence that Zimmerman had attacked or threatened Martin, in anyway. But, Zimmerman’s own statement would have made it possible for Martin to make a valid claim of self defense, for throwing the first punch, if he had not continued the attack as he did.

      Now, you make two erroneous assumption re: the McMichaels case.

      The first is that Arbery committed no crime at the scene of the shooting. Arb ery attacked McMichaels. That is clearly evident from the video. Now this action would only be lawful if Abery was acting in lawful self defense. Otherwise it is a crime. In fact, as he was trying to take a firearm by force, from McMichaels, it is essentially a strong armed robbery, a forcible felony, unless done in lawful self defense. McMichaels would de justified in using deadly force to stop a forcible felony, in Georgia.

      The second assumption is that McMichaels intentionally shot Arbery. Again, we do not know that for a fact. We can clearly see, in the video, that Arbery has a hold on the muzzle end of the shotgun barrel and the muzzle is pointed to the front of his torso. It is a distinct possibility that when he pulled on the barrel of the shotgun, this caused the trigger to press against McMichaels’ finger discharging the weapon. Depending upon the weapon repeated tugs on the weapon could have produced more than one discharge.

      This case is not a slam dunk as a self defense case for either the McMichaels or Arbery. It could very much go either way, at trial. That is why the prosecutors wanted to take it to a grand jury to see if a true bill would be handed down.

        Milhouse in reply to Mac45. | May 18, 2020 at 5:08 pm

        At this point, given the circumstances of Zimmerman following Martin, Martin could have mantained a valid self defense claim that he thought that Zimmerman was reaching for a weapon, as he could not determine what thee bulge in Zimmerman’s pocket was. […] Zimmerman’s own statement would have made it possible for Martin to make a valid claim of self defense, for throwing the first punch, if he had not continued the attack as he did.

        I don’t think so. The crucial point to remember about the whole Zimmerman-Martin incident is that there is no right not to be followed. Zimmerman was completely within his rights to follow Martin at a distance, not interfering with him in any way, and Martin had no right to “defend” himself from that. Given that, he would have had no grounds for jumping to the conclusion that Zimmerman was reaching for a weapon (and even if he did think so he would have had no right to react with violence). Remember that for self-defense to be justified ones fear must be both subjectively felt and objectively reasonable.

          Mac45 in reply to Milhouse. | May 18, 2020 at 9:07 pm

          There were grounds to suggest that Zimmerman may have been reaching for a weapon. If Martin testified that he saw a bulge in Zimmerman’s pocket and that he, Martin, had knowledge that people carried deadly weapons in their pocket and that Zimmerman’s movement was consistent with a person reaching for a weapon, coupled with the circumstances of being followed by an unknown person, and the fact that it was nighttime and raining could be enough to convince a prosecutor, a judge or a jury that a reasonable man would reasonably make the same assumption and take the same actions in lawful self defense. That is how the law works. Remember the Drejka case? When the initial assailant retreated and made no further threatening movements, Drejka lost the legal tight to use force in self defense. However, if the initial assailant had reached into his pocket, Drejka may well have been able to reasonably believe that the man was attempting to draw a firearm. Even if it turned out that the man was reaching for his cell phone, given the totality of the circumstances, at the time, a reasonable man might have reasonably believed the same thing and taken the same action.

          Totality of the circumstances.

        DaveGinOly in reply to Mac45. | May 18, 2020 at 6:58 pm

        “Otherwise it is a crime. In fact, as he was trying to take a firearm by force, from McMichaels, it is essentially a strong armed robbery, a forcible felony, unless done in lawful self defense. McMichaels would de justified in using deadly force to stop a forcible felony, in Georgia.”

        I recall you made an identical argument concerning the hatchet thief in FL, who was shot and killed by the store owner. Whatever happened to Mr. Dunn?

        https://legalinsurrection.com/2018/10/law-of-self-defense-use-of-deadly-force-against-shoplifter-stealing-a-hatchet/

        This was the last word here on the situation:
        https://legalinsurrection.com/2018/10/update-mark-omara-joins-legal-team-for-shoplifter-shooter-michael-dunn/

        (And would you believe there are two “Michael Dunn” defendants in shooting cases covered by Legal Insurrection? The other was the “loud music” shooter whose trial resulted in a hung jury – don’t get me started on that!. Last we heard about this story the state was planning to re-try.)

        An element never forgets.

        DaveGinOly in reply to Mac45. | May 18, 2020 at 7:00 pm

        “Otherwise it is a crime. In fact, as he was trying to take a firearm by force, from McMichaels, it is essentially a strong armed robbery, a forcible felony, unless done in lawful self defense. McMichaels would de justified in using deadly force to stop a forcible felony, in Georgia.”

        I recall you made an identical argument concerning the hatchet thief in FL, who was shot and killed by the store owner. Whatever happened to Mr. Dunn?

        https://legalinsurrection.com/2018/10/law-of-self-defense-use-of-deadly-force-against-shoplifter-stealing-a-hatchet/

        This was the last word here on that situation:
        https://legalinsurrection.com/2018/10/update-mark-omara-joins-legal-team-for-shoplifter-shooter-michael-dunn/

        (And would you believe there are two “Michael Dunn” defendants in shooting cases covered by Legal Insurrection? The other was the “loud music” shooter whose trial resulted in a hung jury – don’t get me started on that!. Last we heard about this story the state was planning to re-try.)

        An element never forgets.

          DaveGinOly in reply to DaveGinOly. | May 18, 2020 at 7:01 pm

          Sorry for the double post. There was a glitch in the Matrix.

          Mac45 in reply to DaveGinOly. | May 18, 2020 at 8:45 pm

          I have no idea what happened to Michael Dunn of Lakeland Florida. As far as I can tell he has not been convicted of homicide for shooting the the shoplifter. If you find a reference as to the outcome, post it please.

          By the way, when you use force, against person, in order to illegally relieve them of property, that is a robbery.

          James B. Shearer in reply to DaveGinOly. | May 18, 2020 at 9:40 pm

          As of March 10, 2020 the Lakeland Michael Dunn was still awaiting trial. More precisely he was waiting for his SYG hearing to be scheduled. So it may be a while yet for this to be resolved. See here .

          James B. Shearer in reply to DaveGinOly. | May 18, 2020 at 9:46 pm

          “… Last we heard about this story the state was planning to re-try.)”

          The loud music Michael Dunn was convicted of first degree murder in the retrial. According to wikipedia:

          “Jury selection in Dunn’s retrial began on September 22, 2014, and opening statements took place on September 25. Dunn was found guilty on October 1, 2014, at the conclusion of the retrial.[25][26][27][28] Dunn was given a sentence of life in prison without parole plus 90 years.”

          Mac45 in reply to DaveGinOly. | May 19, 2020 at 12:28 pm

          James,

          Thank you for the update.

          In the Lakeland case, the article is literally awash in inaccuracies. From a defense standpoint, the applicable statute would be 776.012 not the statute linked to in the article, 776.013. The theft was transformed from a simple misdemeanor retail theft to a felony robbery when the thief used force to continue the theft by pushing Dunn. That is essentially a strong arm robbery, a forcible felony under Florida statute. And, deadly force may be used to thwart a forcible felony. But, statute also says that if a person is armed, when they use force to commit a robbery, that then becomes an armed robbery. [See FSS 812.13]

      JaneDoh in reply to VetHusbandFather. | May 18, 2020 at 2:20 pm

      My question to your comment is this: what is the evidence that he was being chased down with shotgunS pointed at him?

      At what point of the video can you see shotguns being pointed at Arbery, and what else is happening at the point in time that occurs?

      On the video, the elder McMichael initially appears to be holding a cell phone, not a shotgun.

      DaveGinOly in reply to VetHusbandFather. | May 18, 2020 at 5:52 pm

      To quote (again) Massad Ayoob: “A man going for your gun is a man going for a gun.”
      Ayoob, for those of you who don’t know the name, is a long time cop, firearms instructor, and professional witness in police shooting and self-defense cases. His point here was that if you have a gun and someone goes for it, you can reasonably assume that he wants to wrest it from you in order to use it against you. At which point it is reasonable for you to act in defense of yourself because you are in fear for your life.

        Tom Servo in reply to DaveGinOly. | May 19, 2020 at 9:48 am

        But also – if you brandish a weapon in public against someone who has not threatened you, then YOU are guilty of Aggravated Assault, under Georgia State Law. (aka Assault with a deadly weapon)

          Mac45 in reply to Tom Servo. | May 19, 2020 at 11:22 am

          I’m sorry Tom, but you have to define your terms. Brandishing is NOT a legal term which describes an illegal action. Brandishing is merely the presentation of an object visibly. In order for such presentation to be a criminal act, it has to be done in a rude, careless or threatening manner. Agg assault usually requires that the weapon be pointed at the victim, in a threatening manner, or a verbal threat of using the weapon be delivered. Simply possessing or holding a weapon does not rise to the level necessary for aggravated assault.

          I’m not sure how the term “brandishing” became part of the open carry debate, but it is worthless in any legal discussion.

          In this case, the McMichaels were charged with agg assault and with felony murder, which required that the death stemmed from a criminal act. For aggravated assault, McMichaels has to intentionally threaten Arbery with the shotgun. And such a threat has to be clear so that a reasonable man would reasonably view it as a threat and the victim has to be placed in fear by the threatening action. The prosecution will have to prove both points. If they can’t prove aggravated assault, the felony murder charge evaporates.

      It appears from the video that Arbery approached Travis McMichaels and tried to take his weapon. If somebody attacks you and tries to take your gun, that in itself, is a deadly force threat. You don’t have to wait until you are about to lose control of the weapon before you can defend yourself against that threat.

      Also, it’s not even clear that Travis McMichael will be claiming self-defense. They may claim accident – that the struggle for the weapon, initiated by Arbery, was the cause of the weapon discharging. We won’t know that until further down the road when we know the McMichaels defense strategy.

      If Travis McMichaels does claim self-defense, the main question here is who was the initial aggressor. As Andrew Bracca pointed out, based on the video, the self-defense claim does not appear to lack for any of the required elements of self-defense except for possibly the element of innocence (i.e. you can’t claim self-defense if you are the initial aggressor). It boils down to the question of whether Travis actually threatened Arbery with the shotgun (i.e. brandished it in a threatening manner, pointed it at Arbery, or verbally threatened him). The video is crappy and inconclusive on that point.

Always glad to see a breath of sanity in a world that sometimes seem filled with the fog of media madness. You’re welcome here whenever you wish, Mr. Branca (for as much authority as my opinion holds)

Dantzig93101 | May 17, 2020 at 9:07 pm

Trayvon’s Law states that initial media reports of any such incident are almost always deliberate lies. We’ll have to wait on a trial to learn some approximation of the truth.

    notamemberofanyorganizedpolicital in reply to Dantzig93101. | May 17, 2020 at 10:04 pm

    Trayvon’s Law of MEDIA LIES………

    stpaulchuck in reply to Dantzig93101. | May 18, 2020 at 5:45 am

    first law of media: “If it bleeds, it leads!!” ( gotta sell ad space )

      inspectorudy in reply to stpaulchuck. | May 18, 2020 at 10:45 am

      Unfortunately, you are wrong. The old couple in Delaware who was gunned down by a black man days after this incident did not make the leade because they were white. This does not fit the agenda of the msm. They had all of the sympathetic adjectives possible, visiting their son’s grave, both in their eighties, visited it every day, loving caring people. But they had one problem. They were white! The new slogan is “If it bleeds and is black it leads”.

rabid wombat | May 17, 2020 at 9:12 pm

Andrew,

I have seen this in my periphery, but not looked into it. Thank you very much for getting into it. Your insight is most welcome. Thank you for taking the time and sharing.

Though I would love to have drink or shoot with you, I hope to never need your services professionally.

Best

Enough with this b.s.

Hello Andrew. Saw you playing ‘whack-a-mole’ with people on Twitter

I own a copy of your book and have very rarely made a purchase more valuable

Keep up the good work

I thank George Zimmerman for his service to Sanford, to Florida and to all of us who could readily have fallen victim to such a hoodlum as Trayvon had been raised to be.

Joggers generally wear foot apparel consistent with, well, jogging. Which, I understand, Ahmaud Arbery was not wearing. There’s already memes on what to wear while innocently jogging through construction areas…. Which I should have saved when I saw them.

    DaveGinOly in reply to gospace. | May 18, 2020 at 6:07 pm

    As I have pointed out elsewhere (in response to a video by Colion Noir – an NRA spokesperson and media celebrity), the surveillance video showing Arbery inside the house is telling. Arbery, 10 miles from home, was allegedly “out for a run.” But the video of him in the house clearly shows that he wasn’t even sweating. His cotton t-shirt is dry and hanging loosely from his body, not clinging as it would be if he was sweaty. Whatever his purpose in the area, he had NOT been running.

    Speaking of Mr. Noir (a law school graduate, if not a practicing attorney himself), he’s had his knickers in a twist over this case, probably because he’s been drinking the Kool-Aid. It would be interesting to see a discussion (possibly by video conferencing) between Mr. Noir and Mr. Branca.

    How about it, Andrew?

      James B. Shearer in reply to DaveGinOly. | May 18, 2020 at 9:59 pm

      “…Arbery, 10 miles from home…”

      Where are people getting this 10 miles from home thing? Apparently his mother’s house was a couple of miles away. See this story which also reports he did run regularly.

While the Zimmerman case is not an exact match to this case, they have several similarities and some differences.

The similarities are that a resident of a given area follows or pursues an outsider who he believes is suspicious. Zimmerman was suspicious of Martin looking in cars and the McMichaels were suspicious because Arbery fit the description of a suspected burglar. In both cases a confrontation occurred. And, in both cases the deceased physically attacked the defendant and was subsequently shot.

The differences are that there is no indication that Martin knew that Zimmerman was armed and, therefor, there was no reason to suspect that Martin actually viewed Zimmerman as a deadly threat. There is little doubt that Arbery knew that McMichael was armed, as McMichael was holding a shotgun. But, we have no evidence that McMichael actually threatened Arbery or even displayed the shotgun in a threatening manner. In the Zimmerman case, we know that Zimmerman reasonably believed that Martin’s attack was likely to result in great bodily harm to him [Zimmerman] if Zimmerman did not use deadly force to stop the attack. In the McMichaels case, we know that Arbery attacked McMichael and the two struggled for possession of the shotgun. What we do not know, at this point, is whether McMichael intentionally discharged the weapon or if it discharged accidentally, during the struggle.

Now, based upon the charges filed, the current prosecutor is operating under the assumption, still unproven, that McMichael threatened Arbery, with the shotgun, or displayed it in such a manner that a reasonable person would have reasonably assumed that the use of deadly force was imminent. He is assuming that Arbery’s attack upon McMichaels was lawful self defense in response to the crime of aggravated assault and that his death occurred during or as the result of an illegal act resulting in the charge of felony murder. However, if the non-physical contact between McMichaels and Ardery was not an unlawful assault, then Arbery’s attack on McMichael would be unlawful, a battery. If the shotgun discharged accidentally while McMichaels was attempting maintain control of it, this would preclude any charges being filed against McMichael. If Arbery’s attack was unlawful, and McMichael intentionally shot him to stop Arbery from gaining control of the weapon and potentially using on him, this might well constitute lawful self defense on McMichaels’ part.

So, the prosecutors were faced with a case which could go either way. It seems that they were intent upon presenting the case to a grand jury and letting that body decide if criminal charges would be filed. The shutdown of the judicial system, due to the COVID virus, put that on hold. The Arbery family’s lawyers went to the media for help in securing an arrest in the case. And, that is where we are now. As more evidence becomes available, to the public, we will have a better idea of the truth surrounding the incident.

    MarkSmith in reply to Mac45. | May 18, 2020 at 11:32 am

    Agree totally with your assessment. Based on press reports, McMichaels knew Arbery. It will be interesting to find out why Arbery was in the neighborhood and to find out what was going on in the neighborhood.

    Grand Jury is a good move. McMicheals character is going to be key to this.

    Crump involvement is a red flag.

Morning Sunshine | May 17, 2020 at 10:27 pm

Thank you for chiming in on this. I found LI because of the Trayvon-Zimmerman case. I have avoided all of the news about this since the first article I read a few weeks back. I decided that if the MSM and social media have already condemned these men, I would wait for more information. There is always more facts that come to light AFTER the online lynching.

I hope you keep us updated on this. I prefer facts to emotion in my news reporting.

    That comment is striking similar to what I was going to post

    Also came here during the Zimmerman trial, and have avoided following this too closely for the same reasons

    Is there a chance that THIS is the one time they pick a victim that didn’t contribute somewhat to their own demise? That remains to be seen.

    I guess there’s a first time for everything

    JusticeDelivered in reply to Morning Sunshine. | May 18, 2020 at 11:30 am

    I agree that we prefer facts, and submit that we have a grievance industry which spreads lies, in order to make money.

    We have a long list of examples of this. The only reasonable path is to assume that this is another similar effort, and to not believe anything they say.

    At this point I think that Ahmaud Arbery is probably another criminal who received lawful justice, and that we have another attempted lynching of honest hard working people.

    Does Ahmaud Arbery have a rap sheet? That would shed light on rather or not he is another thug.

I think this is total different than the Zimmerman case.

Until I see/hear more info. Right now, it appears Arbery could be claiming self defense to being threaten by the gun.

As it stands now, McMichael over step, Zimmerman was following and was not trying to make an arrest.

It is sad that it is happening at this time. Puts Trump in a tough spot. FBI will throw him under the bus.

    Are you under the impression that the McMichaels were attempting a citizens arrest of Arbery?

    On what basis do you hold that impression? Because that’s NOT what the McMichaels themselves have claimed. So what’s the source of that claim?

    If the answer is “well, that’s what everyone is saying,” the propaganda got you.

    –Andrew

    Attorney Andrew F. Branca
    Law of Self Defense LLC

      amwick in reply to Andrew Branca. | May 18, 2020 at 7:09 am

      That is exactly what I heard from the news I watch.. but I was suspicious of this case from the beginning, because of the reasons you mentioned in this article.. I kept thinking “jogging while black” sounded the same as “hands up don’t shoot.” (remember Anthony Rashid?)

      Ty Mr. Branca, it was great to see you back.

      MarkSmith in reply to Andrew Branca. | May 18, 2020 at 11:14 am

      I never said citizen arrest did I.

      Lets look at it in context, (not at the hunt club), two men who just happened to be carrying guns. Why were they carrying their guns? Where they out hunting? Did they use there guns in a fashion to be threatening? We don’t know. Obviously, you are not hunting legally on a public street. So did McMichaels just appear with a weapon because he just happen to be carrying it or to intimidate? We don’t know?

      Is it normal for someone with a gun to be riding in the bed of the pickup truck?

      A third was in a vehicle taping it.

      Press reports indicate motive to confront was robberies in neighbor. Video tape is produced showing possible suspect. It casing a house a felony? Probably at worst a misdemeanor trespassing.

      So. is there a motive or were the two just joy riding in the neighborhood with guns and a guy follows to tape the whole thing?

      Unlike Zimmerman, this is happening in broad daylight. 3 people are possible involved and one actual had training to handle such matter the proper way.

      Without more information, McMichaels had no justification to confront Arbery with the information I have. Even with justification (ie citizen arrest) Mcmichaels likely had enough information that there was not a need for immediate arrest.

      Even if McMichaels saw Arbery stealing something, what justification did McMichaels have to protect someone else’s stuff?

      You could possible use the Bernhard Goetz defense, but I really don’t think the McMichaels where too concern about being threaten by 3 thugs, but maybe there way an issue with the “problem kid” in the neighborhood. There always is a problem kid. It states young when he is the one that eats dog food or dirt to be funny.

      “If” McMichaels knew Arbery’s background that does not justify the confrontation, and in fact means that McMichaels knew Arbery and could have handle it better since their was no issue of a fleeing unknown felon (and a question of felony in the first place). McMichael’s background should have been able to discern the difference of if it was a felony.

      If it comes out that McMichaels knew it was Arbery and knew Arbery’s past history, I think he is toast.

      Until I see more, Arbery my have been the local thug, but McMichaels over reacted and his law enforcement training should have kicked in. It is reasonable to expect that McMichaels has a higher standard because of his background.

      My take is that Arbery was using self defense and McMichaels screw up. Murder is going to be a tough one to prove. Without a motive presented, McMichaels is the aggressor.

      McMichaels case might even be worst for him, if McMichaels did not have any crimes committed against him before this by Arbery.

      At this stage, there is not enough information. IMO, McMichael should have known better how to handle it correctly and he didn’t. Idiot taping it, actually made it worst because it appears they were expecting a confrontation. A guy in the back of the trunk makes it look worst. McMichaels character with law enforcement is going to be key to this.

      I will be interested in Stately McDaniel take on this. Andrew does a good job of laying things out in the video, but like the Dunn case, poor judgement does not justify self defense.

        Mac45 in reply to MarkSmith. | May 18, 2020 at 1:08 pm

        To answer some of your points:

        They were reportedly carrying the guns because they thought that they were going to confront a burglar, ie, a criminal. Criminals have been known to be armed with deadly weapons and use said weapons to escape contact with anyone attempting to make contact with them. So, being armed would be a reasonable situation. LEOs employ the same tactics on a regular basis.

        One of the McMichaels stated that he saw Arbery run by his house and that he fit the description of a burglary suspect. The men secured arms and followed him down the street with the intent of confronting him. The extent of their intent in the confrontation has not been disclosed in news reports. Now contacting a person, on a public street, is not illegal. Forcibly detaining a person, without lawful cause would be. But, we have no evidence that happened or was even the intent of the McMichaels.

        What it appears you are hung up on is the difference between merely confronting a person and using force or the threat of force to detain a person. Approaching a person and asking them stop or give you information is not unlawful. You do not need any “reason” for such a contact. Using force or the threat of force to stop someone requires a lawful reason. Now, if McMichaels hd approached Arbery, with shotgun in hand, and Arbery had kept walking, forcing him to stop by shooting him or threatening to shoot him would be a criminal act. Whether the mere presence of the shotgun was enough to allow a reasonable man to reasonably assume an attack was imminent or that McMichaels actually made an unknown overt threat with the firearm is enough to justify Arbery’s attack upon McMichaels is iffy. And, again, this is why the prosecutors wished to present the case to a grand jury.

        A good attorney stands a good chance of getting an acquittal in this case, depending upon the jury.

          DaveGinOly in reply to Mac45. | May 18, 2020 at 6:18 pm

          I will add that videoing the event could just as easily have been to protect the McMicheals, as a cop’s body cam is supposed to protect the cop, by making a record that will (hopefully) show that the one of the parties to the event was legally “in the right” and the other “in the wrong.” This may or may not have included an expectation of a confrontation or fight, but even if it was that’s not inconsistent with the “body cam” analogy. Indeed, a cop is supposed to turn on his cam when he suspects an incident may develop. This is only rational and should not impugn an officer’s thought process or motive. Why should it impugn the McMichaels’?

        Char Char Binks in reply to MarkSmith. | May 22, 2020 at 11:43 am

        I’ve seen no evidence that McMichael was riding in the pickup bed. He was standing, and the truck was parked.

        This is a minor issue as far as the murder case goes, if even that, but it shows your lack of observational skill, and maybe a lack of gray matter.

        Your fantasy version of the incident is not useful. Please stop commenting.

      chrisboltssr in reply to Andrew Branca. | May 18, 2020 at 4:26 pm

      You would be surprised how many conservatives have swallowed the propaganda on this case. They have become as emotional over this case as the Left has.

        “You would be surprised how many conservatives have swallowed the propaganda on this case. They have become as emotional over this case as the Left has.”

        Yep. Including several prominent people in the 2A community. It’s sad.

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

      EpicMale in reply to Andrew Branca. | May 18, 2020 at 4:35 pm

      I’ve reviewed another video. While the site posting it is not a highly trusted site, the security tape from a home across the street from the home Arbery invaded appears unaltered.

      The pertinent footage begins at 13:30. I would suggest you use the controls for the video to slow it down to .25X, because the frame rate of the security video effectively speeds it up about 4X.

      Arbery appears, but he is not jogging. He is strolling. He leaves the roadway and trespasses upon the property. He stands, surveying the area, hands on hips, perhaps checking for potential witnesses. Then he boldly walks into another person’s garage, a person he did not know nor have business with, on a Sunday afternoon.

      He exits the garage, and walks around the left front corner of the home, disappearing towards the rear of the home. Was the interior garage door entry locked?

      While Arbery was inspecting the interior of the home, a neighbor walks out towards the roadway, then reverses and stands in the shadow, or behind the trunks, of a small grove of trees. He raises what appears to be a cell phone to his ear. I was told he called the McMichaels, reporting the appearance of a bold prowler. Another report states that he also called the police, just as Arbery suddenly bolts at high speed from the front door of the residence.

      This flight takes place just as a slow moving car passes the front of the home. Was this Arbery’s accomplice who panicked and fled? It was reported that at this point the witness, while talking to the police, reported “a black man running”. And he was RUNNING, sprinting at a very high rate of speed. He covered fifty yards or more in six or seven seconds.

      At the far end of the street, his interactions with the McMichaels begins. His flight to escape the witness and now the irritating McMichaels hindrance of his flight seems to have boiled into a quickly hatched plan to disarm one.

      https://www.liveleak.com/view?t=CbXWR_1589048573&fbclid=IwAR0ZQei8zpPtgD-8PuksZuqHbxktvNu4LsH5maMxoH_F1s0PXEDusWVBarc

      Now, let me point out that the original video of the deadly encounter clearly reveals Arbery alter his vector ninety degrees, impacting the junior McMichaels a couple of dozen feet backwards. Arbery escalated by altering his path. There has been no evidence that the McMichaels were doing anything more than observing, and making the improper behavior of a person not in residence in that neighborhood, well aware that they were on high alert. Arbery made the choice to attack, when there was no credible evidence that there was a threat to him, beyond being delayed for the arrival of the police.

      Now, we also have some reports that the police and the McMichaels were exchanging texts with the police. I doubt we’ll get an accurate report of that upfront from the media.

      Finally, I think much of this legal action against the McMichaels is being instigated by officials out of fear. Riots and burning buildings follow Crump around. They don’t want their community to burn, or their citizens suffer (black or white, though it is usually black people that die in riots). Arbery FEARED the arrival of the police. That was the real threat to him. He was a convicted felon. He was a convicted shoplifter (thief), which was a probation violation. I’m betting they find that Arbery had chosen a career path. Have we seen any employers bemoaning his loss?

BlueThunder | May 17, 2020 at 11:05 pm

As a runner, I was particularly appalled by this case because there was apparently an article in Runners World about it. Based on that article, fellow runners of mine were running a certain distance on a certain day to commemorate the victim. Nobody was calling out the fact that there was no way he was jogging. Crappy shoes, no socks, cargo shorts past the knees, no stopwatch, no water, and a cotton shirt?

Does anyone know what type of shotgun was involved? Three shots would have to be on purpose if it was a pump shotgun.

    It’s a good question. Given the very physical nature of the struggle, I wouldn’t be shocked if a pump could have been cycled twice, allowing for three shots, but three shots would definitely be more easily imagined with a semi.

    But I’m afraid I don’t have that information.

    –Andrew

    Attorney Andrew F. Branca
    Law of Self Defense LLC

    RobM in reply to ConradCA. | May 18, 2020 at 2:05 am

    As a shotgun hunter, I’ll tell ya… most assuredly a automatic. There was no pumping of the action in the video, and 3 shots precludes a dbl-barrel. Also, Aubrey was yanking on the shotty to get control, and there is discussion on whether that very tugging is what caused the discharges. ( also, esp a automatic ).

thad_the_man | May 17, 2020 at 11:48 pm

There was a live stream with Robert Barnes and an internet lawyer which focused mainly on the case. The take away I got was that McMichael was an excop who had arrested Arbery, that Arbery at first tried to get away and for some reason changed his mind and charged the two, possibly because he realized that it was McMichael and he was made.

The biggest takeaway was that you need to watch the whole video, but I haven’t been able to find the whole video. Does someone have a link?

    I believe Greg McMichaels was involved in the investigation of Arbery’s gun offense. Don’t know if he was involved with any arrest, nor if Arbery was actually convicted. (Early media reports of this case stated convicted, more recent media reports state investigated or charged, so ambiguous.)

    –Andrew

    Attorney Andrew F. Branca
    Law of Self Defense LLC

      He was convicted. Gun at school, got 5 year probation. 3 years later convicted of stealing, but somehow avoided jail. Just like Trayvon, this kid slipped through the cracks of a system trying to give him a chance. Check out Molineau on YT.. he has a lot of the history of this kid.

      EpicMale in reply to Andrew Branca. | May 18, 2020 at 4:41 pm

      The report I read, which seemed oriented towards fact rather than speculation, stated that McMichaels, in his position as the DA’s investigator, was involved in the investigation of the gun crime and the prosecution. That does make it likely that McMichaels interrogated Arbery at some point, and perhaps testified on the stand in open court.

amatuerwrangler | May 18, 2020 at 12:41 am

Andrew Branca checks in. The varsity has taken the field, folks.

Branca, good breakdown. Grabbing for control of a shotgun equals two men fighting for control of a deadly weapon. Neither are considered unarmed at that point, no? Travis had a responsibility to maintain control as it was his shotgun legally carried in the open.

The McMichaels have to get as much info out into the public as possible as soon as possible. These two are not going to be convicted. Not unless they can’t find a good lawyer. That’s what is bad, they are now fighting for their lives and the law is on their side… but they have to prove it. As soon as I saw President Obama mentioned this as a black jogger being hunted down and shot for not answering questions, that all I need to know. This is Travon… all over again. With all the bells and whistles.

    amwick in reply to RobM. | May 18, 2020 at 7:13 am

    But, there is another DOJ, with another AG, I hope that matters.

      Lucifer Morningstar in reply to amwick. | May 18, 2020 at 8:54 am

      No, it doesn’t matter. RINO AG Barr will do what he does best. Sit on his lazy butt and do nothing while the rest of the DOJ runs wild with this case.

    DaveGinOly in reply to RobM. | May 18, 2020 at 6:37 pm

    “Travis had a responsibility to maintain control as it was his shotgun legally carried in the open.”

    Where did you get this notion? When carrying a firearm you have a responsibility to keep it secure, but when someone tries to take it from you by force it’s the other person who is breaking the law (attempted theft, with the reasonable presumption that worse is planned). Can you cite your authority for that statement? I know that some jurisdictions have criminalized “improper/insecure” storage of firearms if they are stolen when not secured according to statutory requirements, but have never heard what you are suggesting.

The actions of the McMichaels at the time of the shooting, based on the information we have, are very clearly lawful. Their judgment/risk analysis is very very very poor.

Legality aside this was an unnecessary series of events. One person is dead and two more are going to have their world turned upside down. The McMichaels will never be the same financially or emotionally as a result.

As with everything, I waited for more information before making a judgement.

1) As Branca points out, the entire red herring of ‘ARBERY DIDN’T COMMIT A CRIME’ is totally irrelevant to this. The McMichaels were not attempting to arrest him, they were not threatening him, and if he were actually ‘jogging’, then Arbery could have simply flipped them off and continued jogging. He ran into him and fought for a freaking shotgun, and he got shot. As Branca points out, McMichaels apparently hasn’t claimed self-defense, because that would require him to shoot him intentionally.

2) The video was released by a friend of the McMichaels, thinking it would clear them. To me, it does. It certainly doesn’t show what the media claims. 2 racists with shotguns roll up intending to kill a ****er, and you think they let him actually get his hands on the shotgun? The whole laughable bullshit about Arbery ‘jogging’ is a fucking joke. Why did he run at them? No idea, and it’s totally irrelevant.

3) At this point, I see absolutely NO evidence of the so-called ‘racism’ that the media was screaming about other than the fact that Arbery happened to be black. And just like Zimmerman, you KNOW that literally thousands of reporters were frantically digging for ANYTHING they could splash on the news. The microsecond somebody found something it would be wall=to=wall on every single media outlet. The fact that they can’t even produce a laughably doctored 911 tape tells me that racism is zero actual part of the facts in this case.

4) Arbery’s family hired a laughable race baiting hustler. There are certain lawyers that tell you all you need to know about the motivations from people hiring them.

5) The final fact that seals this for me is that apparently they are now on the FOURTH prosecutor for this case. When you see any case that goes through that many prosecutors in an incredibly short time, it makes you seriously question what they know that you don’t. And it smells like none of the other prosecutors thought that this had any real chance of being anything other than a massive pain in the ass with a media shitshow, with no chance of an actual conviction that would make them the bad guys for not arguing ZOMG RACISM in the courtroom (of which there is ZERO evidence).

    GWB in reply to Olinser. | May 18, 2020 at 1:37 pm

    they were not threatening him
    I’m going to disagree with this. While I know there is a difference between “brandishing” and “holding in plain sight”, they did park their truck to intercept Arbery (regardless of whether he could “just go around”) and were openly displaying weapons. A reasonable man could definitely see that as “threatening”.

      You’re free to use the term “threatening” in whatever personal way you like.

      The bottom line remains that an assault requires an unlawful act, and mere open carry of a firearm is not unlawful under GA law, now is parking your vehicle ahead of someone running, nor is asking someone running to stop so you can ask them a question.

      If there’s going to be assault, and thus aggravated assault, and thus a felony murder predicated on aggravated assault, you need an unlawful act.

      Brandishing the weapon at Arbery or explicitly threatening Arbery conduct beyond mere lawful holding of a gun by one’s side would be needed in this case, and I see no evidence of either.

      If you have such evidence, please share it with us.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

        Well, men intercepting (note the difference with “blocking”) ME with a truck and weapons evident would certainly not be cause for peace and harmony. And I consider myself a fairly reasonable man. I think most of my neighbors would consider that to be moderately “threatening” as well.

        Note, I did NOT say the knuckleheads committed “assault”. I did not say it was justification for what ultimately transpired. I merely said I disagreed with the “not threatening him” statement. How that very reasonable perception of a threat plays into the legal process, I leave to you.

        Personally, I think these guys were knuckleheads, regardless of Arbery’s contribution to his own death. As to whether they were enough of knuckleheads to deserve felony murder, I don’t know.

    EpicMale in reply to Olinser. | May 18, 2020 at 4:47 pm

    News4 in Jacksonville was running an ALTERED video. It shows Arbery jogging towards the truck. As he nears the rear of the truck, it suddenly transitions to Arbery and Travis McMichaels spinning in their deadly combat. It completely eliminates Arbery’s hard left turn to bum rush Travis.

welldone

Fox and Friends just aired a short segment that said the police may have informally deputized Gregory McMichaels.. There are also text messages that indicate the police thought Ahmaud was a thief. They reportedly encouraged a construction site owner to contact Gregory if they noticed trespassers. 1:13 into the 6am show.

My take on this 10 seconds of news is that Ahmaud has been on their radar for a while.

This is going to be interesting..

    Sanddog in reply to amwick. | May 18, 2020 at 12:54 pm

    Which would explain why they were actively pursuing him in the truck and apparently yelling for him to stop. I have a problem with them following him, getting ahead of him and then getting out of the truck to “talk to him” while holding a shotgun because they suspected he had committed crimes. Apparently, the elder McMichael had left his pistol in his unlocked truck and it was stolen earlier this year. Was he hoping he’d find it on Arbery?

      EpicMale in reply to Sanddog. | May 18, 2020 at 4:50 pm

      I would venture that he was more in FEAR of finding it on Arbery, and Arbery using it. He knew Arbery was a felon convicted of a gun crime, so it was not likely that he would suddenly observe the law against a felon carrying a stolen firearm.

        MarkSmith in reply to EpicMale. | May 18, 2020 at 9:03 pm

        If McMichael’s knew it was Arbery and he might be carrying, it was stupid to do what he did. I would expect more from a law enforcement person.

JackinSilverSpring | May 18, 2020 at 8:17 am

Mr. Branca, I’ve noticed some of the same similarities of this case to that of Trayvon Martin. It would be good for all of us if you stay focused on this case. The media have an axe to grind and they will not provide us with the real facts.

Hotep.Maqqebet | May 18, 2020 at 9:05 am

Remember how in both cases (Tryvon, Arbery) a young black man is now dead, not killed by police?
Yes, I knew you could.

Uncle Samuel | May 18, 2020 at 9:50 am

Would be very interested in what Arbery’s blood toxicology report would show.

With Trayvon and Michael Brown, the mix of street drugs by both young men were known to produce aggression, paranoia, irrationality and anger.

All three aggressed toward their pursuers.

Remember Michael Brown roughed up folks in the neighborhood store before the incident with the LE officer and turned back and charged the officer when he was asked to stop.

Trayvon had assaulted a bus driver and teacher or counselor at school. The night of the incident with Zimmerman, some evidence showed he had gone all the way home, or nearly so, but went back to attack Zimmerman.

I remember reading that blunts (tobacco and marijuana, sometimes laced with other substances) and purple drank (soft drink, candy and cough syrup) Trayvon’s choices, created abnormally aggressive, violent behavior.

Drugs, plus family problems, lack of good moral training and values, plus negative peer influences….really does mess these kids up. Weren’t Trayvon’s and Michael Browns fathers in the gangs?

    James B. Shearer in reply to Uncle Samuel. | May 18, 2020 at 4:59 pm

    “Would be very interested in what Arbery’s blood toxicology report would show.”

    According to second hand accounts of the autopsy report (here wikipedia): “There were no signs of alcohol or drugs in Arbery’s body.”

    Although the autopsy report has supposedly been released I can’t find a copy of the actual autopsy report on the web.

      MarkSmith in reply to James B. Shearer. | May 18, 2020 at 7:51 pm

      I am skeptic of both sides on this. What is the McMichaels tox. report?

      Way to early to make any decisions about this.

      Tox. report on Martian was all messed up if I recall.

      “Although the autopsy report has supposedly been released I can’t find a copy of the actual autopsy report on the web.”

      Media reports are not evidence. Evidence is evidence, especially when we know the evidence to actually exist and be available for production (e.g., Arbery’s tox report).

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

Does the fact that McMichael knew Arbery had a weapons conviction have any legal bearing. Perhaps in terms of the reasonableness of his arming himself.

inspectorudy | May 18, 2020 at 11:00 am

If you would like to see the best documentary on the Martin-Zimmerman case there is get the video by Joel Gilbert and is called “The Travon Hoax”. I have watched it and he completely destroys the prosecution. In fact, he makes a case for their indictment for so much misconduct. He runs down the real Martin girlfriend and proves so many things were outright lies from the Martin family and lawyers. He did this on his own and it is a remarkable video. I am sure this case will be filled with many lies by both the msm and the Arbery family and friends. And guess what? They are hiring the same criminals that the Martins did.

I’m white, and I have zero doubt these two fat goober vigilantes would have attempted to “detain” and then shot me just as they did Arbery.

    MarkSmith in reply to cgray451. | May 18, 2020 at 11:39 am

    LOL, I guess they should throw the racist thing out the window. I take issue with fat goobers, though. You know the media is going to spin this as typical Trump supports attacking black people.

    So far, Trump has keep his distance with comments. Lets hope he does not pull an Obama and say something stupid.

      JusticeDelivered in reply to MarkSmith. | May 18, 2020 at 2:17 pm

      Obama both said something stupid, admitting that if he had a son, that said son would have been a lying thuglet, and backing the wrong side.

      I very much doubt that Trump would back the wrong side.

        Experience and observation suggests that Donald Trump is considerably smarter than Barack Obama.

        –Andrew

        Attorney Andrew F. Branca
        Law of Self Defense LLC

          JusticeDelivered in reply to Andrew Branca. | May 19, 2020 at 7:33 am

          I agree. Obama is an example of money buying access to college for someone who otherwise unqualified, the result is the same as affirmative action. Obama is a polished empty suit.

    n.n in reply to cgray451. | May 18, 2020 at 1:35 pm

    Diversity (i.e. color judgment) breeds adversity.

RobertEvans | May 18, 2020 at 11:55 am

Mr. Branca….

Thank you so much for picking this up. I am a big fan and can remember sharing your articles with friends and other officers from my patrol car when Trayvon was in the spotlight years ago. Although I am now retired, I have been pertinently waiting for your initial analysis on this incident and look forward to seeing how this develops.

So some places have his named spelled as Arbury including Andrew:

I’m not sure how much writing on this Arbury case, I’ll be doing here at Legal Insurrection. I’ve been made more than welcome, as usual, for which I’m as always grateful, but I find my time increasingly constrained by other commitments.

The Independent did it too.

Attorneys for family of young black man in Georgia say footage ‘confirms that Mr Arbury’s murder was not justified and the actions of the men who ambushed him were unjustified’ as Department of Justice considers hate crime charges against suspects

https://www.independent.co.uk/news/world/americas/ahmaud-arbery-death-shooting-construction-site-video-a9509071.html

    EpicMale in reply to MarkSmith. | May 18, 2020 at 4:55 pm

    For the record, criminals often have multiple spellings for their given names, as well as outright aliases. Many also have multiple DOBs on record, also.

    I believe, for no very good reason, that the correct spelling is “Arbery.” In any case, I’m trying to be consistent with that spelling. If I used “Arbury,” that was unintentional.

    –Andrew

    Attorney Andrew F. Branca
    Law of Self Defense LLC

First, thank you Mr. Branca for weighing in on Legal Insurrection. I watched the 3 hour video of your interview by the attorney drinking bourbon chased by Grape soda, before I went to your website and saw the video’s posted here. Since I’m retired, I have plenty of time to absorb myself in this shooting. You have confirmed about 95% of what I have posted in other places about this case. As your student, I have taken what I have learned from your posts here at LI, especially the way you make the reader focus on the pertinent facts, and not the emotional arguments that are media driven. My opinion from day one that this became the newest cause celeb was that this was not the case the media presented it to be. (I remarked that it wasn’t as ‘black and white’ as the experts said it was.) My first thought was that the self defense claim would depend on the GA citizens arrest law giving them legal protection of acting lawfully at the time of the shooting. This is the only place where we have differed in accessing a legal issue.

James B. Shearer | May 18, 2020 at 4:46 pm

“Upon closer inspection, however, it became obvious that citizens arrest law, was likely not at all relevant to this case, at least based on the evidence currently available.”

Would the law become relevant if it turns out there is additional evidence that Travis did act in such a way as to ordinarily be considered assault?

To move into the realm of pure speculation, it has recently been claimed that the currently public video is just the last portion of a much longer video. If this is the case perhaps this much longer video shows Arbery being threatened (assaulted). Perhaps this is why Barnhill (the second DA to handle the case who for some reason deemed it appropriate to lay out the defense case before recusing himself) brings up the citizen arrest law.

Of course this is very thin. On the other hand if Greg was responsible for the video leak presumably he had a reason for only leaking the last portion.

    Re: relevancy of the Georgia citizen’s arrest statute. If Travis McMichael had used the shotgun in a threatening manner to attempt to forcible detain Arbery, then he would need lawful authority to do so, This is where the citizen’s arrest comes in. However, there has been no evidence presented to the public which shows that the McMichaels attempted to physically detain Arbery and neither has voiced an intention to do so.

    As to why Barnhill chose to present a case for not unilaterally charging the McMichaels with a crime, my personal opinion was because he was essentially being accused of covering up a criminal act to the benefit of the McMichaels. While it is possible that prosecutor could be biased in favor of a potential defendant, it is usually much more likely that the prosecutor does not consider the case strong enough to easily win in court. This is especially true in high profile cases. As I have said, this does not look to be an especially clear-cut case. This is very likely the reason why neither of the initial prosecutors did not issue arrest capii in the case. And, there is no reason to doubt Barnhill’s assertion that he was intent upon presenting the case to a grand jury, when the court system opened up. In order to produce a capias or an arrest warrant, the person obtaining such must affirm, under oath, that probable cause exists to believe that the person named in the warrant committed the criminal offenses enumerated therein. I wouldn’t like to make a probable cause arrest in this case.

As soon as I saw ben crump take over this case I knew it was going to media driven to perfection.

As soon as I saw ben crump take over this case I knew it was going to media driven to perfection.

James B. Shearer | May 19, 2020 at 12:54 pm

“… As I have said, this does not look to be an especially clear-cut case. This is very likely the reason why neither of the initial prosecutors did not issue arrest capii in the case. …”

The first DA, Jackie Johnson, recused her self almost immediately. She was basically required to do because Gregory McMichael had been her chief investigator for many years. It is disputed whether she (or her office) did anything substantive before she bowed out. The local police claim they were advised not to arrest the McMichaels immediately, she says it was their call.

Barnhill took over from Johnson. He eventually recused himself as well because his son had worked together with Gregory McMichaels. But he delayed his recusal for several weeks after learning of the conflict of interest. In the mean time he continued to make the defense case even in one instance while saying he was planning to recuse himself. It seems clear to me that that was improper, once you know you need to recuse yourself you should stop taking substantive actions.

    About the police response. LEOs do not need prosecutorial approval to make a felony arrest. That they did not do this, in this case, tends to imply that there was not a clear-cut violation of law. Otherwise, the McMichaels would have been arrested quickly on probable cause. You have to remember that the Arbery family were accusing the local authorities of conspiring to refuse to arrest the McMichaels. So, even if innocent of any wrongdoing, local political entities are going to try to blame someone else.

    Barnhill stated that he was going to take the case to the grand jury. However, no grand jury was seated because the state had shutdown the judicial system for COVID. The State GBI then got involved and made a PC arrest, just like what happened in the Zimmerman case. It was a political decision, not a legal one.

      James B. Shearer in reply to Mac45. | May 19, 2020 at 7:11 pm

      “Barnhill stated that he was going to take the case to the grand jury. …”

      It was the third DA, Tom Durden, who took over after Barnhill belatedly recused himself, who stated he intended to take the case to a grand jury. He also accepted the Governor’s offer to bring in the GBI. After the McMichaels were arrested Durden requested the case be transferred to an office with more resources which was done leading to the appointment of the fourth DA, Joyette Holmes, to handle the case.

      One big difference with the Zimmerman case is that Zimmerman wasn’t a retired cop. Putting any racial angle aside I think it is reasonable to suspect that retired cops sometimes get undeserved breaks from their former colleagues.

retired cop | May 20, 2020 at 6:11 pm

I’m curious about the shotgun. Was it a semi automatic where a new shell would be chambered automatically or was it pump action where the fore grip would have to be “pumped” after each shot? As in a conscious effort being made to chamber a new shell. I can see where in the struggle over the gun that this could happen unintentionally. I’m making no judgement whether or not Travis intentionally re-chambered a shell after each shot was fired.
Also to early but what will the toxicology results on Arbery show? I find it difficult to believe anyone unarmed would charge someone holding a shotgun. Perhaps he was on some drug.

James B. Shearer | May 20, 2020 at 8:48 pm

“Also to early but what will the toxicology results on Arbery show? …”

Arbery was killed February 23 so the toxicology results should be back. Media reports say no drugs or alcohol were found in his autopsy. However I have not found a copy of the actual report on the web.

It looks like another case where jury selection will be critically important.

Just silly speculation at this early point in the process, but my prediction on this case is hung jury for the 1st trial. My reasoning is that there is no chance of getting 12 unbiased reasonable people not blinded by their emotions as jurors, but it only takes one juror to actually pay attention to the evidence, follow the law, and follow their conscience to bring about a mistrial. Then a refiling of the charges, and a bitter war of attrition that the state will eventually win because it has the resources to keep prosecuting forever. For all their chances of coming out of this in one piece, the McMichaels might as well be living in revolutionary France during the reign of terror. J’accuse! And then the guillotine.

James B. Shearer | May 21, 2020 at 7:01 pm

According to a GBI press release:

“On May 21, 2020, the GBI arrested William “Roddie” Bryan Jr., age 50, on charges of Felony Murder & Criminal Attempt to Commit False Imprisonment. …”

Bryan was the person who recorded the video. Based on the video I had thought he was in some legal jeopardy since it could be argued that he was driving Arbery towards the McMichaels.

It is interesting that the predicate felony, attempted false imprisonment, for the felony murder charge is different from that for the McMichaels which was aggravated assault.

Char Char Binks | May 21, 2020 at 11:36 pm

Keep up your social distancing if you don’t want to end up like the McMichaels, or Arbery.

Font Resize
Contrast Mode
Send this to a friend