phillips, hunt, walker & hanna Ahmaud Arbery and Jordan Davis
I was sitting in my office when the reporter called. There was gruesome new video depicting the death of a young black male- Ahmaud Arbery. It’s the type of video I am often asked to review- the death of someone’s child. It is something I see way too often, especially living on the Florida / Georgia border. It never stops hurting. It never stops reminding me of Jordan Davis.
It was a few days after November 23, 2012, when I got that call the first time. There was no video to tell the story. A black teenager was shot and killed by a white man on the Friday after Thanksgiving. The altercation started with a complaint about loud music and ended with a statement, “You aren’t going to talk to me like that,” and ten shots were fired at the boy’s SUV. The killer was Michael Dunn and he cowardly fled the scene, despite later claiming self defense. Once found, his first lawyer, Robin Lemonidis, would repeat a host of lies and blame the innocent boys. Dunn’s first attorney is now a Brevard County Circuit Judge. She was recently summoned before the Florida Supreme Court to receive a public reprimand for “intemperate behavior during court proceedings.” No kidding. He had two more attorneys through his two criminal trials and even more lawyers during the civil case. Justice was slow, but achieved.
At that meeting and after, Jordan’s family was consumed by grief, as only those who lost a child would comprehend. His father was a good friend of a good friend. His mother was down from Georgia after receiving the call about her only child. I will never forget her eyes. It was the first time I ever saw eyes that had lost all sparkle. She wanted justice, but first wanted to bury her son. Their phones wouldn’t stop ringing. Few facts were known. I was there 20 minutes before all three news crews knocked on the door. I politely asked them to go away.
Ron Davis hired me on the spot. Lucia McBath was a little more skeptical. She finally accepted the 37-year-old me (now 45) because of my heart, she’d later say in the documentary, Armor of Light. It took two criminal trials, over several years, but we achieved every definition of justice for Jordan, but it still didn’t take away the pain and the loss of a child gone too soon and too frivolously.
Now speaking as U.S. Congresswoman McBath, I just saw her on CNN, trying to summarize her pain and the long campaign for justice the Arbery family now faces. Walking with Jordan’s parents, and others, prepared me not only for my own cases and causes, but to take calls like I was now taking from Tarik Minor of WJXT.
“Can you come down and comment on this video,” Tarik asked. “I can. Is it bad?” I knew the answer. I had heard the story, but was curious if it was as bad as insiders said. It was worse.
As a civil rights lawyer, you generally hear about many cases before they make the news. I follow some of the warriors in the movement on social media and in real life. This case was underreported and then was erased behind a wall of COVID-only news stories. It lacked video and was thus closed to being dismissed as another “white person said this and black person couldn’t contradict it” one-sided story we’ve all seen too frequently.
As I walked into the entrance of WJXT, a chair was set up with lights. I sat down, microphone’d up and waited for the video I never want to see. I always want to help in any way we can, even if it is bringing these important stories to the light. But it is never easy. The camera rolled.
“Oh no,” I whimpered. I rolled it back to try and slow it down and reverse the execution of Ahmaud Arbery. “No.”
“Wait, right there.” “That’s what they will claim is self defense, but it’s not.” “This is where they will abuse the easily abusable law known as Stand Your Ground, but it doesn’t apply. The white guy was the aggressor and never reset or de-escalated.”
“This was an unjustified homicide.” The camera rolled and then we addressed it in a more formal interview. I was hurting inside. I was hurting for our country. I was hurting for my friends of color and people I will never meet who are killed more commonly and more easily because of the color of their skin. Why did I agree to do this minutes after seeing the video? I am not ready for this. Again. Tears rolled off camera.
First off, I am licensed to practice law in Georgia. I have a law office in Brunswick, blocks from the courthouse. I try cases to the point I am Board Certified as an Expert in Civil Trial Law. I have the largest verdict in northeast Florida- $495 million. We got it for Kalil McCoy, who was shot and killed and dumped in a ditch. We take these cases. We know these laws. This isn’t me guessing or pretending, as some blogs and legal posts will do. I don’t do divorce or real estate law. I do exactly this… in exactly this city. My office is across the street from another lawyer involved with this case. It’s my opinion here. I have been wrong before. I own it when I am wrong, but these were unjustified criminal acts.
First off, before we get to the video of the shooting, we must address whether there was any criminal act to warrant Arbery’s detention by civilians.
“The Trespass” / “Burglary”
Video shows Ahmaud stopping to look at a home under construction. He doesn’t vandalize it, destroy anything or take anything and is only inside for a short time. He was not asked to leave. There is no evidence of burglary (a felony) under § 16-7-1, Georgia Code. There is no evidence of trespass (a misdemeanor) under § 16-7-21, simply because he occupied another’s property for a few minutes. There was no probable cause to arrest him and certainly no crime committed in the video I have seen. Even if there was, the police were called at that scene. They didn’t need another George Zimmerman taking the law into their own (incorrect) hands.
As for the shooting, two laws are at issue here:
“Citizen’s arrest” laws exist in over 40 states. They largely were enacted to give stores like Walmart the ability to regulate theft by keeping shoplifters in the store while police are called. You can read articles like this which detail the massive amounts of calls for police service these stores make per year. “Citizen’s arrest” laws were not meant for businesses or citizens to pretend to be law enforcement or to use force or firearms to detain individuals. They are designed to temporarily maintain the status quo while police are called and arrive and to prevent false arrest or malicious prosecution claims. Certainly, forced detention can legally happen under many state’s laws, but it wasn’t the original intent. Calling law enforcement should always be the top priority. When it’s not, you need to seriously question the motives of the “citizen.”
“Citizen’s arrest” laws were not meant for vigilante justice, like which resulted in the death of Ahmaud Arbery. Most states simply do not allow the use of deadly force unless it is in pure self defense of deadly force. If someone is told to stop shoplifting, because you are calling the cops and they pull out a gun, you can defend yourself. You can’t shoot them over a stolen steak. Or a stolen car. Police can’t, either.
In Georgia, the main statute is 17-4-60, and is entitled, “Grounds for arrest.” It states, “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.”
In other words, if the arresting civilian SAW a crime or was specifically AWARE of a crime, he could arrest. “Arrest” in this context simply means he/she can seek to inhibit a person’s freedom to leave. If the offense is a FELONY, he/she can seek to stop someone escaping with a little more aggressive action. It is never okay to hop in a truck with guns like a modern day militia and stop or harass someone. Never.
Two problems for the McMichaels: (1) What was the crime? Running? No. Entering an unoccupied and open structure where he committed no crime? No. The use of a citizen’s arrest with a firearm was likely an illegal assault by Mr. McMichael upon Mr. Arbery, which then led to Mr. Arbery’s manslaughter or murder. (2) Even if Arbery was a fleeing felon (he wasn’t), the use of a shotgun and a .357 was unwarranted under these circumstances. You cannot hunt people to arrest them. You cannot be your own deputized vigilante or militia.
Further, open carry of firearms is legal in Georgia if you have a CCW license. If you do not have a CCW license, you are not permitted to openly carry in Georgia. The carrying of firearms in this fashion certainly may have initially been legal, but this became illegal when it was used to threaten or intimidate, hurt or kill another human.
Self Defense / Stand Your Ground / Defense of Others:
We do not see 100% of the encounter in the video, but we do not need to. Mr. Arbery is running and presents no threat to either Mr. McMichaels. They stop a moving truck to get out of the truck with a visible shotgun to threaten or detain Mr. Arbery without a legal right to do so (see above). Mr. Arbery had every right to defend himself. While exhibiting his own legal self defense, Mr. Arbery is killed.
Certainly, there is a point where there is a fight for control of a shotgun, which may often determine who lives and who dies in these scenarios, especially when you have another person in the bed of a truck. Self defense can be fluid, but Stand Your Ground is not fluid and does not apply. You cannot be the aggressor of force and wrap yourself in stand your ground immunity.
All criminal defendants are innocent until proven guilty, but the defense does not look promising here. A jury will ultimately decide what crimes the shooters committed. It all depends on what truly led up to Gregory and Travis McMichael being armed inside a truck, chasing down a man running down the street in a motor vehicle and getting out of that motor vehicle instead of calling police with his location. It could range between involuntary manslaughter and first degree murder, depending on each person’s intent and action.
What about the video?
One other issue in this case involves the video. Why was the encounter being filmed? What is going on? Was this all a set up?
According to media, the video was first released by Alan Tucker, a lawyer who used to be with Farah & Farah, a personal injury law firm. It appears the firm quickly erased him from their website and social media. Alan Tucker originally indicated he consulted with Travis and/or Gregory McMichael in some capacity, and wanted the video out to show, “It wasn’t two men with a Confederate flag in the back of a truck going down the road and shooting a jogger in the back.” Although he claimed the “high road,” this lawyer did not release the video to the family or the family’s lawyers, but a radio station. How did he get it? And why did he do this?
William “Roddy” Bryan is the person who recorded the video. He hired a lawyer named Kevin Gough. Gough is locally notorious for representing convicted former pastor Ken Adkins, who was convicted in 2017 of sex crimes with minor(s).
On May 11, 2020, Gough committed malpractice live on CNN, trying to get 15 minutes of fame off of the incident (in this lawyer’s opinion). This was literally the worst interview I have ever seen by a lawyer. I have done 1000s of these interviews, with and without clients present, and they all require specific purpose and preparation. Instead, he chose to expose his client to a live CNN interview with Chris Cuomo without proper preparation of himself or his client. Gough then proceeded to repeatedly make himself and his client look bad, even insulting his client’s intelligence while standing right next to him. It’s offensive.
Cases rarely make the news if there isn’t video. Maybe the media will tell the story the day of, or after, of any particular homicide. Maybe the media will spend two days on the story if the vigils or facts hold the media’s attention. Media coverage is rarely fair and never equal. Police and prosecutors have tough jobs, but often these crimes remain unsolved or cleared by one side of the story, as almost happened here. All too often, dead men tell no tales and so their deaths are frequently omitted from courts of law or courts of public opinion. More stories need to be told.
There is also the concept of victimizing the victim. Sometimes lawyers (like the now disbarred Florida lawyer Chris Chestnut) will send themselves, or others, to the wakes or funerals of victims to try and sign up families. It is beyond disturbing. Various people who claim to “know about these things” will show up and make recommendations through cousins or people in church. With Jordan’s family, some set up and sold shirts, claiming the family’s permission when they had none. It is too often the norm. Families need to diligently research their lawyers and people who advocate for them. Justice is more than a press conference and media event. It is years of side-by-side effort.
John M. Phillips is an award winning lawyer and media legal expert, licensed to practice in Florida, Georgia, New York, Alabama and Washington, D.C. He can be contacted at (800) LITIGATE or (904) 444-4444. He is not affiliated with this case.