From Rittenhouse to Arbery, Self Defense Rules Are Put to the Test in America

The murder of Ahmaud Arbery in Satilla Shores, Georgia shocked the nation, with images of a black man being chased by three white men in trucks. Obvious racial elements quickly defined the trial. However, the three defendants claimed a right that is hundreds of years old, allowing citizens to arrest suspected criminals. Similarly, there is a call to reduce self-defense laws following the acquittal of Kyle Rittenhouse in Kenosha, Wis.

These cases are just the latest controversies over common law defenses, which are unlikely to be resolved by the proposed reforms. They are the quintessential jury decisions about what is reasonable in situations that defy easy definition.

In the Arbery case, Judge Timothy Walmsley delivered an uproar to the defense on the eve of closing statements. The court ruled that Georgia’s former citizen arrest law is only applicable if a person sees a crime committed and then acts without delay. That would seem to eliminate a central defense that the three defendants were pursuing a person suspected of a series of crimes over the past year. Bob Rubin, the attorney for defendant Travis McMichael, objected that “if you are going to instruct the jury as you say, you are directing a verdict for the state.”

Judge Walmsley simply replied, “I understand the meaning of this charge.” The defense could appeal the judge’s ruling and will likely do so with any conviction.

In fact, the citizen arrest law that was being applied in the case has already been rescinded after the outcry of the Arbery shooting. Georgia’s new law eliminates the right of bystanders or general witnesses to detain people. (The new law allows commercial employees to detain individuals suspected of theft, including private security and restaurant employees.)

The history of Georgia’s citizen arrest law is highly controversial. In fact, the problem is that the court must rely on previous courts to interpret a law with a horrible legacy, not only during the Civil War, but later, during the Civil Rights movement. The law was created in 1863 and designed to allow whites to capture fleeing slaves.

Even after the Civil War, Georgia saw abuses of the law, as in the case of McPetrie v. State, 587 SE2d 233 (2003), in which several men suspected another of theft. They tied him up, hung him by his feet, beat him with a plastic bat, and used a stun gun while questioning him about missing items from a store; They defended themselves against a false incarceration charge by claiming to have acted under the citizen’s arrest provision. The court rejected the claim, holding that the men sought to “beat a confession out of him or administer [their] version of self-righteousness. And the defense of justification is not so broad as to allow a private citizen to make his judgment as he sees fit. “

Georgia’s original law was based on an older right of citizen arrest, a power used in modern times by groups like the Guardian Angels to police urban areas. In medieval times, not only were citizens allowed to arrest criminals, they were also expected to do so. This included the duty to respond to a “riot” from others who identify a criminal and seek help. The Winchester Statute of England in 1285 stated that the citizens should “follow them with the whole city and nearby towns, with a commotion from city to city until they are taken away and turned over to the sheriff.”

American courts, however, developed a distinction between felonies and misdemeanors, out of concern for vigilantism. Under common law, a person can arrest people for felony offenses or misdemeanors when minor offenses are committed in their presence.

The elimination of arrests of citizens by Georgia in most cases will not end the deadly clashes. Citizens can still follow suspected criminals; in a confrontation, they are still protected by self-defense rules. That’s what George Zimmerman used successfully in his trial for the 2012 murder of Trayvon Martin in Sanford, Florida.

Additionally, Georgia, like many states, still maintains its “defend your position” law, which does not require you to leave before someone defends himself. On Beard vs. United States, 158 US 550, 562 (1895), the United States Supreme Court declared that if “a person, through no fault of his own and in a place where he has the right to be, is violently attacked, he can, without backing down, repel the force of force ”, including deadly force.

And deadly force can still be used to protect yourself or your home or to prevent a serious crime. Dozens of states (including Georgia) have “Castle Doctrine” laws. These laws, sometimes referred to as “Make My Day” laws (a reference to the famous Clint Eastwood movie line), allow deadly force against anyone entering a home illegally. Some states have extended those laws (sometimes called “Make My Day” laws) to cars and businesses. Those laws often allow the use of deadly force against unarmed intruders.

Even reducing the power of citizen arrests may not sit well with citizens in states where politicians are asking to withdraw funds from the police or reduce their ranks.

Some go further, particularly after Rittenhouse’s acquittal, to demand a similar lowering of self-defense rules and make it more difficult to claim as a defense at trial.

However, that will not be as easy as removing the power of citizen arrests. While there has been much talk of Wisconsin’s self-defense law as being highly protective of those who claim privilege, it is not substantially different from most other states. Common law has long allowed people to use deadly force when they reasonably believe they face a threat of serious bodily injury or death. To establish intent to murder, a prosecutor must still prove that someone acted without legal cause or privilege. That was the element that was out of reach in the Zimmerman case.

With the rise in crime nationwide, it is doubtful that many citizens would support changes to demand a higher level of proof that they had to use potentially lethal force when attacked. Even if Wisconsin had shifted the burden of requiring individuals to demonstrate a need for self-defense (rather than for prosecutors not to demonstrate such a privilege), the Rittenhouse case would likely have resulted in the same acquittal. The fact that Rittenhouse used force only after being attacked created broad base for self defense.

Also, imposing higher requirements on the use of a lawful weapon could raise constitutional problems. CNN legal analyst Jennifer Rodgers called for changing open transportation laws in Wisconsin and other states. But The Supreme Court will soon rule on Second Amendment protections for carrying such weapons in public. Even if you limit open bearing, it is unlikely that you can constitutionally prohibit the right to carry such legal weapons in general.

That is why the cathartic call to limit the self-defense or arrest powers of citizens is unlikely to reduce these painful and highly divisive cases. These are inherently murky incidents, heavily imbued with our social, racial, and economic divisions. That is precisely why we have long relied on selected juries from these communities to make judgments on the use of force. These cases are contextual rather than definitional in terms of their verdicts. After hundreds of years, whether someone used force reasonably remains an elementary, even primary, question for the jurors.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find their updates on Twitter. @JonathanTurley.

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