Rednecks shoot black kid running in neighborhood

[OUBubba]

Y'all are forgetting what Htown77 said, Arbery's pockets weren't empty.

He was being ambiguous for good reason, but he was saying to wait. There is important information to come out on both sides.

A. He could have nothing in his pockets worthy of being held at gunpoint short of Marcellus Wallace's soul.
B. They did not witness any such theft and would have no reason to know that he had anything he shouldn't.

 

[Crockett]

I can see the defendants making the case that they had an ample amount of paving material for General Sherman's road to hell. I think the length of the trial and makeup of the jury might be deciding factors in whether they walk, and if not, how they are punished. I can imagine different outcomes for each defendant.

 

[Mr. Deez]

I'm going to disagree with this. I was listening to a lawyer talk about this case and he made some great points. It's not trespassing unless the property is signed no trespassing, there is a barrier such as a fence, and you are asked to leave and don't. All three of those criteria have to be met for someone to be charged with trespassing in Georgia

The defendants aren't going to rely on trespassing. That won't get them anywhere, because it generally isn't a felony. They need burglary, and that offense has different elements.

As for intent to commit theft, that is only considered if someone takes another person's property but doesn't leave with it, then it can be construed as intent to commit theft, they can't say intent to commit theft simply because he is some place he shouldn't be. That goes for even in cases of walking into someones home through the front door. Now if you enter through the window or break the door down, then criminal intent is assumed.

You and Switzer are focusing on what intents can be presumed. I'm not talking about presuming intent. I'm talking about what other evidence not yet known might (or might not) show.

He's another thing to consider, and I honestly don't know the answer. How certain must a "citizen arrester" have to be of someone's guilt to confront him? Does he have to be absolutely certain of every element of the alleged crime or just enough to arouse suspicion? Or to put it another way, does he step into the shoes of a police officer or someone of greater certainty?

 

[NJlonghorn]

The status as a dwelling is an interesting question; I wonder whether that is a legal question or a fact question (I know almost nothing about jury charges in criminal cases).

I would defer to huisache (because he has done a lot of criminal work) or NJLonghorn (because he's smarter than I am) on this, but it I suspect that there would be a guilty/not guilty question coupled with definitions of burglary and terms like "dwelling." I'm pretty sure that criminal jury charges (like civil) have a preference for broad form submission.

Generally speaking, the definition of a statutory term is a question of law. Thus, as @Mr. Deez says, a typical jury charge would give a definition of dwelling and instruct the jury to use that definition in reaching its verdict.

That said, I don't think the issue would survive a motion for directed verdict. The statutory definition of "dwelling" in Georgia's burglary law does not specify whether a residential construction site counts as a "dwelling". In this circumstance, most courts will fall back on the common law. As Scalia and Garner say in their treatise Reading Law: The Interpretation of Legal Texts: "A statute will be construed to alter the common law only when that disposition is clear". I haven't looked at whether Georgia follows this rule of construction, but I'm not aware of any state that doesn't.

Under the common law, a structure does not become a "dwelling" until it is occupied. Here's what I found on LawShelf:

Please note that a dwelling that is under construction but has not yet been slept in is not considered a dwelling for burglary purposes. However, once a building meets the definition of a dwelling for burglary purposes, it remains a dwelling even when the people residing in it leave for a temporary period of time.

I haven't researched this thoroughly enough to sign my name to a brief, but my pretty-reliable conclusion is that the home under construction was not a dwelling. This means there would be no basis for the jury to conclude that Arbery had committed burglary, so they would be instructed not to apply any concept of hot pursuit / citizen's arrest. Those concepts simply don't apply.

In fact, there's some question as to whether a jury would even be told that Arbery had entered the construction site. If it has no legal relevance, it seems more likely to be prejudicial than probative.

If my analysis is correct, the only viable defense would be self defense. I have not looked into whether Georgia law allows the instigator to raise self defense. If it doesn't, the battleground at trial will be "who was the instigator".

 

[Mr. Deez]

I haven't researched this thoroughly enough to sign my name to a brief, but my pretty-reliable conclusion is that the home under construction was not a dwelling. This means there would be no basis for the jury to conclude that Arbery had committed burglary, so they would be instructed not to apply any concept of hot pursuit / citizen's arrest. Those concepts simply don't apply.

That was my initial impression. However, here's what gave me pause. The Georgia burglary statute defines a dwelling as, "any building, structure, or portion thereof which is designed or intended for occupancy for residential use." It doesn't have to actually be in use. Furthermore, the statute expressly states that the property can be, "occupied, unoccupied, or vacant" to be first degree burglary. My understanding is that the property was not new construction but was being remodeled and had presumably been slept in at some point. Of course, I could be mistaken on that.

However, here's another twist. Subsection (c) states, "a person commits the offense of burglary in the second 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 building, structure, vehicle, railroad car, watercraft, or aircraft." As you can see, you can commit burglary without it even being a dwelling, and it's still a felony.

Of course, it's possible that my lawyerin' ain't 20-20 anymore after being out of practice, but I see this issue as having more complications. I will reiterate that more evidence would have to be discovered to show intent to commit theft.

If my analysis is correct, the only viable defense would be self defense. I have not looked into whether Georgia law allows the instigator to raise self defense. If it doesn't, the battleground at trial will be "who was the instigator".

I don't think this is on the menu unless evidence arises that the defendants tried to withdraw from the confrontation. Georgia's self defense statute states that self-defense doesn't apply if the defendant, "was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force."

I decided to take a look at the Georgia citizens arrest statute. It's pretty brief. "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."

This is worded awkwardly. Is this two different bases to make a citizens arrest? First, you can arrest a person for an offense (even a misdemeanor) if it's committed in your presence or within your immediate knowledge. Second, you can arrest a person if you have reasonable and probably grounds to suspect that a person has committed a felony and is attempted to escape. Am I reading that correctly? If I am, then I think the defendants can at least avoid a directed verdict on the second basis.

Or is this a very sloppily-written statute that is meant to require the offense to be committed in the arresting person's presence or immediate knowledge, that the offense be a felony, that the offender be escaping or trying to escape, and that the arresting person has reasonable and probable grounds of suspicion? If that's what it means, then some legislative counsel had to be drinking on the job, because it might be the most crappily-written piece of legislation I've ever seen.

 

[Austin_Bill]

I'm talking about what other evidence not yet known might (or might not) show.

I can only comment on what I know right now, if new information comes to light I will gladly change my opinion, but for now nothing has been given to the public that I know of that incriminates the dead dude.

It's still my opinion this guy should never have been killed by these guys, they were in law enforcement and should have known better. They can't plead ignorance of the law, they screwed up and now someone is dead.

 

[Mr. Deez]

I can only comment on what I know right now, if new information comes to light I will gladly change my opinion, but for now nothing has been given to the public that I know of that incriminates the dead dude.

Look at some of what I posted above. It's not just about incriminating the dead dude.

It's still my opinion this guy should never have been killed by these guys, they were in law enforcement and should have known better. They can't plead ignorance of the law, they screwed up and now someone is dead.

Like I mentioned before, I'm not going to defend what these guys did. Even if they can legally defend themselves for it, it was a stupid and dangerous thing to do.

 

[NJlonghorn]

My understanding is that the property was not new construction but was being remodeled and had presumably been slept in at some point. Of course, I could be mistaken on that.

If that is true, it would seem to change everything. I hadn't read that.

However, here's another twist. Subsection (c) states, "a person commits the offense of burglary in the second 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 building, structure, vehicle, railroad car, watercraft, or aircraft." As you can see, you can commit burglary without it even being a dwelling, and it's still a felony.

Hmmmmm. It seems reasonable to guess that "structure" includes a home in construction. Thus, even if a directed verdict would be appropriate on burglary in the first degree, burglary in the second degree may still be viable.

I decided to take a look at the Georgia citizens arrest statute. It's pretty brief. "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."

This is worded awkwardly. Is this two different bases to make a citizens arrest? First, you can arrest a person for an offense (even a misdemeanor) if it's committed in your presence or within your immediate knowledge. Second, you can arrest a person if you have reasonable and probably grounds to suspect that a person has committed a felony and is attempted to escape. Am I reading that correctly? If I am, then I think the defendants can at least avoid a directed verdict on the second basis.

Awkward, yes. But it does seem to be an either-or. The way I read it, if you actually witness a misdemeanor, you can arrest the offender. If you only have "probable grounds of suspicion", it needs to be a felony.

That said, many courts would bend over backwards to avoid that conclusion. Can you imagine the chaos if any yahoo could arrest anyone they saw committing a misdemeanor? I looked at the list of misdemeanors in GA, and it includes more than just the standard "petty crime" stuff like open-container violations; public intoxication; small-quantity drug possession; property damage; simple assault; and shoplifting. It also includes all traffic violations. So if you see someone you don't like speeding, or failing to use a blinker, or running a stale yellow light, or whatever, you can legally arrest him/her. That CAN'T be the law -- can it?

 

[iatrogenic]

I go walking or jogging in a tshirt and cargo shorts a lot. Better come at me with guns.



Why? If dudes with weapons chase me down in their vehicle to confront me, they've already started something and I have no right or duty to answer to them, even if they don't actually come up to me and grab me and hold me down.

I agree. You have no right to attack them and try to take a gun from them either.

If they were not pointing a gun at you or threatening to shoot, you just tell them to eat a bar of soap, or just ignore them and keep on truckin.

 

[Mr. Deez]

That said, many courts would bend over backwards to avoid that conclusion. Can you imagine the chaos if any yahoo could arrest anyone they saw committing a misdemeanor? I looked at the list of misdemeanors in GA, and it includes more than just the standard "petty crime" stuff like open-container violations; public intoxication; small-quantity drug possession; property damage; simple assault; and shoplifting. It also includes all traffic violations. So if you see someone you don't like speeding, or failing to use a blinker, or running a stale yellow light, or whatever, you can legally arrest him/her. That CAN'T be the law -- can it?

I'm sure the courts would bend over backwards to avoid that conclusion. It's absolutely crazy. I can see why they wouldn't mind arrests for some misdemeanors like low-level theft, first offense DWI, shoplifting, etc. However, if we're being literal, McMichael could say, "I saw Arbery jaywalking (littering his gum-wrapper or some other petty crap) while he was jogging" and justify a citizens arrest, and if he can justify a citizens arrest, then he can likely justify shooting Arbery for going for his gun. There has to be a limitation on it. Perhaps there's already a court case that says, "surely our legislature didn't mean this."

 

[Crockett]

So will the judge set a reasonable bond? These guys don't seem like a flight risk to me and the case is not looking like it will be open and shut.

 

[Mr. Deez]

So will the judge set a reasonable bond? These guys don't seem like a flight risk to me and the case is not looking like it will be open and shut.

I would think the judge will allow them to post bond. Not likely to be a flight risk.

 

[Creek]

I agree. You have no right to attack them and try to take a gun from them either.

If they were not pointing a gun at you or threatening to shoot, you just tell them to eat a bar of soap, or just ignore them and keep on truckin.

Actually if someone brandishes a gun that is a serious threat. You're serious escalating the situation to Defcon 4? That someone is setting in motion a lot of unintended consequences. People will react differently. Flight or Fight takes over. Especially if you are being tracked down by a truck in Georgia, by whites, I can justify any reaction by the victim.
Likewise, If someone throws a rat in your crowded kitchen. Some people will jump on the counter, some will run out the door, some will calmly hunt the rat, and some will punch put the guy who threw the rat. All reactions are justified.

 

[iatrogenic]

Actually if someone brandishes a gun that is a serious threat. You're serious escalating the situation to Defcon 4? That someone is setting in motion a lot of unintended consequences. People will react differently. Flight or Fight takes over. Especially if you are being tracked down by a truck in Georgia, by whites, I can justify any reaction by the victim.
Likewise, If someone throws a rat in your crowded kitchen. Some people will jump on the counter, some will run out the door, some will calmly hunt the rat, and some will punch put the guy who threw the rat. All reactions are justified.

Whether you can "justify" the actions or not is irrelevant. Carrying a gun is within the individual's rights under the law. Attacking someone for holding a gun is not lawful, unless the gun were pointed at him or it was stated that he would shoot him.

 

[theiioftx]

I am going to bail out of these threads and just listen to the lawyers on the board. I appreciate hearing the legal aspects versus the emotional views.

 

[Statalyzer]

Carrying a gun is within the individual's rights under the law

Yes, but the issue isn't that he carried a gun. That's disingenuous. The issue is that he essentially attempted armed kidnapping with it.

Attacking someone for holding a gun is not lawful, unless the gun were pointed at him or it was stated that he would shoot him.

Again, itt's very disingenuous to use the phase "attacking someone for holding a gun" as if Arbery just ran up to some random guy with a gun and started pummeling him.

Chasing someone down on the streets and confronting them with a weapon is a threat to that's person's life. Anyone being chased down in such a way ought to assume the armed individuals are prepared to use their arms.

Going after someone with a gun and causing them to rightly fear for their life shouldn't give someone a "but I didn't tell him/her directly 'I'm gonna shoot you'" loophole.

 

[nashhorn]

I repeat, I’d really like to know what was said that prompted him to go after the guys gun. That action makes no logical sense without some serious provocation, imo.

 

[iatrogenic]

Yes, but the issue isn't that he carried a gun. That's disingenuous. The issue is that he essentially attempted armed kidnapping with it.



Again, itt's very disingenuous to use the phase "attacking someone for holding a gun" as if Arbery just ran up to some random guy with a gun and started pummeling him.

Chasing someone down on the streets and confronting them with a weapon is a threat to that's person's life. Anyone being chased down in such a way ought to assume the armed individuals are prepared to use their arms.

Going after someone with a gun and causing them to rightly fear for their life shouldn't give someone a "but I didn't tell him/her directly 'I'm gonna shoot you'" loophole.

Armed kidnapping? As in he pointed a gun at him and told him to get in the truck, or on the ground so he could be hogtied or something similar? You seem to have an answer to the most important question. What is your proof?

Whether the guy was random or not doesn’t matter. You can’t attack people if they aren’t doing anything illegal. We don’t know what McMichael said or did. McMichael knew the Dead guy had been convicted of illegally carrying a weapon so maybe he wanted to protect himself.

Following the law is not a loophole, and making assumptions doesn’t allow anyone to break the law and attack another person.

 

[iatrogenic]

I repeat, I’d really like to know what was said that prompted him to go after the guys gun. That action makes no logical sense without some serious provocation, imo.

Agreed, but you are assuming Arbery was a logical thinker. I have reason to question that assumption as well.

 

[Creek]

I am going to bail out of these threads and just listen to the lawyers on the board. I appreciate hearing the legal aspects versus the emotional views.

Laws are just made up rules from people with Emotional views. ( that somehow passes vote)
See Numerous funny State laws

 

[nashhorn]

Agreed, but you are assuming Arbery was a logical thinker.

That may be true but I am also assuming that caustic words could have been said, or shouted that would turn a logical thinker into an irrational actor, which action I take anyone attacking a man with a gun to be.

 

[iatrogenic]

If he was attacking Arbery with a gun, I would agree.

 

[LongestHorn]

Lethal force wouldn't be justified — if the person who used deadly force:

• Was the aggressor and didn't try to withdraw from the situation.
• Initially provoked the other person intending to use force as an excuse to inflict harm.
• Was engaged in criminal activity at the time.

You may not instigate the incident and then say you had to kill the other person because you're defending yourself.

 

[Mr. Deez]

Lethal force wouldn't be justified — if the person who used deadly force:

• Was the aggressor and didn't try to withdraw from the situation.
• Initially provoked the other person intending to use force as an excuse to inflict harm.
• Was engaged in criminal activity at the time.

You may not instigate the incident and then say you had to kill the other person because you're defending yourself.

In a straight self-defense, this is essentially true. However, the citizens arrest angle complicates the matter, because if they can thread that needle, it gives them the right to confront Arbery as a cop would have.

 

[LongestHorn]

If all he was doing was nosing around a construction site (not stealing anything), then at most he was guilty of misdemeanor trespassing. And you're right. That isn't enough to make a citizens arrest

English, the homeowner, stated he did not believe the victim burgled his property. Only the cops, the county, the DA, and murderers have said that. The same group that believes The McDaniels Gang shouldn’t be charged with any crime here.

 

[Mr. Deez]

English, the homeowner, stated he did not believe the victim burgled his property. Only the cops, the county, the DA, and murderers have said that. The same group that believes The McDaniels Gang shouldn’t be charged with any crime here.

I get that it isn't the outcome that you want. I don't like it either. However, legally they have a real chance. Don't **** your pants if the citizens arrest theory works.

 

[LongestHorn]

I practically **** my pants when Guyger was found guilty. I expect cops to get away with murder. Hell, Pasco FL movie theater popcorn self defense cop is still under house arrest after he murdered. That was almost 7 years ago.

No, I’m pissed The McDaniels Gang weren’t arrested two months earlier.

 

[Galvestonhorn]

LH..were you and others here this passionate (when you don’t know all the facts) when O.J. Simpson murdered and almost severed the heads of Nicole Simpson and Ron Goldman? Or do Black Lives Matter only when a white is accused of killing them.

 

[Mr. Deez]

I practically **** my pants when Guyger was found guilty. I expect cops to get away with murder. Hell, Pasco FL movie theater popcorn self defense cop is still under house arrest after he murdered. That was almost 7 years ago.

No, I’m pissed The McDaniels Gang weren’t arrested two months earlier.

Guyger had a weaker case.

 

[Crockett]

The operative dynamic that benefitted OJ Simpson was the one that saved Cullen Davis. Great lawyers with great psychologists given several months working on jurors minds can humanize their client and create reasonable doubt. OJ wasn't acquitted because he was black so much as he was rich and famous. No doubt many in the black community took some pride and joy in the fact that the justice system would let one of theirs get away with murder too.