Prosecutor Linda Dunikoski presents a closing argument to the jury during the trial of Travis McMichael, his father, Gregory McMichael, and William “Roddie” Bryan, at the Glynn County Courthouse, Monday, Nov. 22, 2021, in Brunswick, Ga. The three men charged with the February 2020 slaying of 25-year-old Ahmaud Arbery. (AP Photo/Stephen B. Morton, Pool/The Georgia Recorder)
By Michael Coard
When Travis McMichael, Gregory McMichael and William “Roddie” Bryan targeted, stalked, chased, hunted down and murdered Ahmaud Arbery on Feb. 23, 2020, they did it simply because they were murderous racists. And if they hadn’t been so stupid, they would’ve gotten away with that legalized lynching because of a slavery-era citizen’s arrest law in Georgia.
But it’s not just in Georgia. These pro-vigilante laws are actually in 49 of America’s 50 states in one form or another. Yes. Nearly every state in the United States has laid the groundwork for legalized racist lynchings via citizen’s arrests (not to mention the so-called “Stand Your Ground” laws that are an extension of the “Castle Doctrine” laws that allow private citizens to legally use the same kind of deadly force on the street that they legally use in their castles, i.e., their homes).
In other words, and in practical terms, white people with guns can lawfully kill Black people without guns as long as those white people are smart enough to shout words like “citizen’s arrest” and “felony” and “I feel threatened” and “stop resisting” while they’re murdering us. Fortunately, the Three Stooges who murdered Arbery didn’t, as the social media world phrases it, “understand the assignment.”
Before slavery was kinda/sorta abolished in 1865 with the passage of the 13th Amendment, the state of Georgia passed its citizen’s arrest law that made it legal for armed white people like the McMichaels and Bryan to murder unarmed Black people like Arbery.
Although that legal lynching legislation was passed in 1863, it was still on the books in 2020 when those three murderers executed Arbery. In fact, it wasn’t repealed until 158 years later on May 10, 2021. Well, let me be clear. It wasn’t technically repealed. It was merely revised because it’s still the law — albeit in a somewhat modified version. More about that later.
But here’s my point: Because that law wasn’t revised until May 10, 2021 after the Feb. 23, 2020 murder, the three murderers had the legal right at their Nov. 5 — 24, 2021 trial to raise that 1863 slavery-era citizen’s arrest law as a defense. Stated differently, any law that applies to any criminal defendant is not the law that exists at the time of the trial but is the law that existed at the time of the alleged crime.
The rationale for this approach to the trial court system is that a person should only be held responsible for his/her conduct relative to what the law was when that person did whatever he/she did, not what the law might become sometime in the future.
When the “slave-holding” Confederate legislators and their “slave-holding” sympathizing legislators created that Georgia law in 1863, it stated that a private citizen can “arrest an offender if the offense is committed in his presence or within his immediate knowledge.”
The offense could include such minor infractions as vagrancy, loitering, curfew violations, and anything else a white man or white women found offensive- or lied about.
The law wasn’t designed to stop Black crime because there was none due to the fact that we had been enslaved and locked down since 1619 and could do nothing except backbreaking labor from “can’t see in the morning till can’t see at night” seven days a week.
So if it wasn’t designed to stop Black crime, what was it designed to do? The answer is pretty obvious. It was designed for white men to “keep the n—–s in their place” under penalty of death. The Emancipation Proclamation had just been announced on Jan. 1, 1863, and there were rumors about a possible Thirteenth Amendment if the North ultimately wound up winning the Civil War. Accordingly, white southerners devised a scheme to legally keep Black folks down. And a citizen’s arrest law was one of several ways to do it.
But more than anything, as Cornell Law School professor Joe Margulies makes clear, Georgia’s (and similar laws in other states) citizen’s arrest law “was a ‘slave-catching’ law for ‘slaves’ who attempted to flee. It gave [white] citizens the power to grab (Black people).” Margulies went on to add, this law “derives from a racist past.” And I add a racist present.
That 1863 citizen’s arrest law lasted for 158 years and was legally enforceable up until a mere six months ago on May 10. Think about that for a minute. And then you’ll understand why I’m always yelling and screaming about systemic racism throughout America’s entire legal system in both the past and the present.
When that law was finally revised on May 10 as set forth in House Bill 479 in regard to Section (d)(2) of Title 17 in the Official Code of Georgia, it mandated that citizens “shall not use force which is intended or likely to cause great bodily harm or death, but may use reasonable force to the extent he or she reasonably believes necessary to detain an individual.”
To be completely honest, I’m not really feeling a whole lot of comfort in the language of that revised law because it includes too many gray areas. For example, what do phrases like “reasonable force” and “reasonably believes” mean to white men — a demographic that, from an objective and factual standpoint, has been the most violently destructive entity throughout world history, especially in that particular entity’s contacts with people of color?
Therefore, what that new Georgia law needs to say is “white men who ain’t cops should mind their own business when they encounter Black people and other people of color and should use their guns only at shooting ranges.” From my lips to God’s ears.
When I began writing this column, I had intended to include a list of the states that have citizen’s arrest/potential pro-lynching laws, many conceived and passed during the slavery-era or shortly afterward. But since they are so numerous at a whopping 49, I decided it would be easier to list the one that doesn’t: West Virginia (believe it or not).
For meticulously detailed and updated information about citizen’s arrest laws in each of those 49 states, log on to the Solutions Institute website.
Oh, and by the way, Pennsylvania is one of those 49, so be careful here — especially around white men with guns.
Opinion contributor Michael Coard is an attorney and radio host. His work appears on Tuesdays on the Capital-Star’s Commentary Page. He wrote this column for the Philadelphia Tribune, where it first appeared.
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