Homeowner’s attorney, Arbery family’s attorney respond to new video (took some real liberties)

WTOC ^ | 5.11.20 | Write Gazaway

[spacejunkie2001]

An attorney representing the homeowner of a construction site involved in the Ahmaud Arbery case issued a statement condemning the actions taken by Gregory and Travis McMichael.

A brief surveillance clip appears to show a man that looks like Arbery inside the home minutes before he was killed on Feb. 23. A neighbor called 911 and reported someone in the home that afternoon; the home was under construction and not locked.

Minutes later, responding officers found Arbery in the middle of the road, shot to death by Travis McMichael. Another video captured the shooting. The public release of that video last week sparked nationwide attention and calls for immediate arrests.

The McMichaels told responding officers that they chased Arbery because they thought he was responsible for recent break-ins in the neighborhood. However, the only theft reported to police involved a gun stolen from Travis McMichael’s unlocked truck, according to reports provided to WTOC by the Glynn County Police Department.

[Red in Blue PA]

The only person needing help is you, the defender of thug criminals.

[Red in Blue PA]

Do you steal hammers too?

And grab loaded shotguns before punching people savagely?

[BenLurkin]

You’re saying the shooter saw the decedent prowling at the construction site and knew that he didn’t belong there, yes?

[libertylover]

No, I don’t steal hammers, but I did grab a grape once in a grocery store and eat it. Then I realized, I just stole a grape! But at that point I figured they probably didn’t want it back.

And I sure as hell don’t charge people with loaded shotguns.

[xrmusn]

I still contend that the ‘shooters’ thought they were in the right as well as LEO & prosecutors since it sat around for a while with no action being taken.

Where has this video been for all this time?

I base my ‘observation’ on if McM thought he may have been guilty of something, documentation would have surfaced that he had some kind of ‘special powers’ with the Sheriffs office because of his ‘dedicated lifetime service’ to the County.
Also no weapon was found on the ‘victim’.
If he thought he was in the ‘wrong’, at least a one shot Sat night special would have been ‘found’ nearby.

Either way - IMNSHO - he acted wrongly and should be charged with the shooting etc.

I carry and am aware of my situation at all times and carefully avoid situations where I get into an altercation or argument.

I do say that carrying makes me a ‘politer’ person. <: <: <:

I base my assumption on no weapon found along with if the BUSH Administration KNEW that Saddam had no WMDs in Iraq, we would have ‘found some’.

[Repealthe17thAmendment]

I’m not sure where the story developed that the McMichaels were intending to “arrest” Arbery. Based on other reports, it’s likely they were going to talk to him about the recent break-ins, but thought that he might be armed and brought guns for their defense. If they had intended to shoot him, why would they have ever allowed him to get within an arms reach of the shotgun? It seems to me that Arbery was the one who escalated the situation and the McMichaels were caught by surprise at the agression.

[libertylover]

Thanks for that analysis. I meant that if entering the house and looking around was all that transpired it wouldn’t be much of a crime.

Your analysis that it helps to establish that the McMichaels had probably cause of suspicion about Arbery and the thefts agrees with another Freeper who posted:
http://www.freerepublic.com/focus/f-chat/3843625/posts

[Arones]

The video that the home owners say they never gave to McMichael provided McMichael with probable cause?

Ok.

[Amberdawn]

I agree. If someone wants to see the layout of a house, ask permission; otherwise, IT IS trespassing.

[SimpleJack]

Do we know for sure the kid dropped the hammer on the street, or could it have fallen out of McMichaels” truck, or even been on the road before the incident began?

[DiogenesLamp]

+1.

You always bring the well researched quality.

[shanover]

This case had serious problems from the get go for the PROSECUTION for various reasons. All of a sudden,the partial video is ILLEGALLY released and look what we have here.....Now,there will NEVER be a fair trial for either party. This is how the left destroys our systems.

[Spitzensparkin1]

Kenny500c wrote: “Mom said “he was working to be an electrician” - translation: he had no visible means of support.

---

Thanks for that quote. Yeah, “working to be an electrician” my a**, probably working at stealing copper and wiring. He was just casing the place for later that night.

SS1

[vpintheak]

Being that he left with nothing, I would say no. I don’t buy he was an innocent jogger, but those 2 guys chased him down, 1 had the shotgun drawn; they caused this death. They weren’t defending their property. They chased him down.

[woodpusher]

You’re saying the shooter saw the decedent prowling at the construction site and knew that he didn’t belong there, yes?

I am saying the McMichaels observed the subject look about, go to the structure and enter it, remain outside awhile, while someone called 911 (not the McMichaels) and took video, and the McMichaels observed the subject take off running down the street in street clothes.

It was private property, it was not Arbery's property, and he did not belong in the structure that was not his. Apparently, the 911 caller found it suspicious.

The McMichaels lived there. Arbery was not a neighbor.

And I posed a question, "Did the McMichaels, prior to giving chase, have reasonable and probable grounds of suspicion that Aubery, without authority, and with the intent to commit theft therein, enter or remain within a vacant building or structure?"

The statute phrasing does not require knowledge of a theft, or that a theft occurred. It only requires reasonable and probable grounds of suspicion.

On the high def indoor surveillance video, it is apparent that the subject was not drenched in sweat from running, so it would appear his jog or run began upon exit from the structure.

I did not say, but as the elder McMichael was an investigator for the DA for the previous 30 years, he may well have known of the subject's criminal record, including for unlawful concealed carry of a handgun at a local high school basketball game.

Whether all of that provides reasonable and probable grounds for suspicion, opinions may vary.

If reasonable and probable grounds for suspicion are found, then more statues apply.

2018 Georgia Code
Title 16 - Crimes and Offenses
Chapter 3 - Defenses to Criminal Prosecutions
Article 2 - Justification and Excuse
§ 16-3-23.1. No duty to retreat prior to use of force in self-defense
Universal Citation: GA Code § 16-3-23.1 (2018)

A person who uses threats or force in accordance with Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force.

- - - - - - - - - -

2018 Georgia Code
Title 16 - Crimes and Offenses
Chapter 3 - Defenses to Criminal Prosecutions
Article 2 - Justification and Excuse
§ 16-3-24.2. Immunity from prosecution; exception
Universal Citation: GA Code § 16-3-24.2 (2018)

A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 of Article 4 of Chapter 11 of this title.

[woodpusher]

I’m not sure where the story developed that the McMichaels were intending to “arrest” Arbery. Based on other reports, it’s likely they were going to talk to him about the recent break-ins, but thought that he might be armed and brought guns for their defense.

The elder McMichael was a Glynn County cop for seven years and then an investigator for the DA's office for thirty years. I believe it likely that he knew the statutes on citizen's arrest. That is what arguably authorized the pursuit and attempted detention/arrest or questioning with a shotgun in hand. It is what would have arguably made the brandishing of weapons legal.

The elder McMichael, fairly recently retired from the DA's office, very possibly knew of Arbery's prior record, including for felony unlawful concealed carry of a firearm at a local high school basketball game.

An arrest may be defined as a substantial physical interference with the liberty of a person, resulting in his apprehension and deten­tion. It is generally effected for the purpose of preventing a person from committing a criminal offense, or calling upon a person to answer or account for an alleged completed crime.

An arrest may be effected “actually” or “constructively.” An actual arrest occurs when a duly empowered law enforcement officer in­tentionally employs physical force (e.g., a physical touching of the person), and delivers a formal communication of a present intention to arrest (e.g., “You are under arrest!”). A constructive arrest occurs without an intentional use of physical force and without a formal statement indicating an intention to take the person into custody. Moreover, in constructive arrest situations, the power or authority of the arresting officer, along with his or her intention to effect the ar­rest, is implied by all the circumstances surrounding the encounter. In either case, to determine whether an arrest has occurred, a court will examine whether physical force has been applied—which may be accomplished by a mere touching of the suspect—or, where that is absent, whether there has been a “submission to the assertion of au­thority.”

Larry E. Holtz, Criminal Procedure for Law Enforcement and Criminal Justice Professionals, Matthew Bender & Company, Inc, 2015, p. 1

You do not really have to hear you are under arrest. Two guys with guns saying they want to talk to you may be a sufficient show of authority to get the job done. Had Arbery submitted to their show of authority, and not felt free to leave, that could be constructive arrest. This is probably known to a 37 year member of law enforcement and seemed apparent to the District Attorney.

DA George Barnhill wrote:

Third
It appears Travis McMichael, Greg McMichael, and Bryan William were following, in 'hot-pursuit', a burglary suspect, with solid firsthand probable cause, in their neighborhood, and asking/telling him to stop. It appears their intent was to stop and hold this criminal suspect until law enforcement arrived. Under Georgia Law this is perfectly legal,

OCGA 17-4-60 A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.”

I would not necessarily recommend anyone emulate the McMichaels. A court could find they did not have reasonable and probable suspicion, and then they are in very deep kimchi.

[woodpusher]

Being that he left with nothing, I would say no. I don’t buy he was an innocent jogger, but those 2 guys chased him down, 1 had the shotgun drawn; they caused this death. They weren’t defending their property. They chased him down.

I am unsure what having a shotgun drawn, as opposed to undrawn, really means. For handguns, undrawn would generally mean holstered.

GA Code § 16-11-102 (2018)

§ 16-11-102. Pointing or aiming gun or pistol at another

A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.

Leaving with nothing is not necessarily significant. He was interrupted and left running. The statute authorizing a citizen pursuit and arrest does not require that the subject actually took anything. It requires that the McMichaels had reasonable and probable grounds of suspicion. That they were not defending their property is irrelevant, as long as they had reasonable and probable suspicion of a felony. The question is not whether Arbery committed a felony, but whether the McMichaels had reasonable and probable grounds of suspicion. I am really addressing whether the McMichaels have a plausible defense.

If Arbery submitted, and were alive, his defense to a charge of burglary or criminal trespass would be a lack of sufficient evidence to prove it beyond a reasonable doubt. It is possible to wind up with a dead body and no crime. If the McMichaels had the requisite suspicion, no party to the shooting comitted a crime. Arbery may have thought he was being accosted by two klansmen. Arbery grabbed the business end of a shotgun and bad things happened.

[Red in Blue PA]

Do you even know what the word drawn means?

If the shotgun was drawn on him, how was he able to attack?

[sit-rep]

well maybe thats why crime is so high. rumors of being chased down and shot have gone buy the way side.

[trebb]

If the camera sends data to "the cloud", it makes sense to have it w/o the additional expense of a fence---how many new home constructions have you seen with fences around them?

It almost sounds like you're blaming the guy having the home built for what others might do.