EXPLAINER: What the defense in Arbery’s killing is arguing

Travis and Greg McMichael said they armed themselves and sped after Ahmaud Arbery because they thought he was a burglar, and they wanted to catch him and hold him until police arrived.

When the 25-year-old Black man turned and fought during the chase, they said, Travis McMichael shot him in self-defense.

That’s what the defense maintains in the trial of three white men accused in the killing of Arbery, who was shot three times in February 2020 near Brunswick, on the Georgia coast. The McMichaels, a father and son, and neighbor William “Roddie” Bryan are charged with murder and other crimes.

The defense strategy depends on Georgia’s citizen’s arrest and self-defense laws.

WHAT DOES THE DEFENSE SAY HAPPENED?

Greg McMichael, 65, told police he saw Arbery “hauling ass” past his house and believed he had committed burglaries nearby. McMichael ran inside, grabbed a handgun and shouted to his son, who emerged with a shotgun.

The two men jumped in a pickup truck and pursued Arbery through their subdivision. Arbery was on foot.

Seeing the chase in progress, Bryan climbed into his own pickup and recorded video on his cellphone as he joined the pursuit.

Bryan, 52, told an investigator he used his truck several times to block Arbery and edge him off the road. Greg McMichael told police he shouted at Arbery to stop.

At the end, Bryan’s video shows Greg McMichael in the bed of his pickup truck with a handgun and Travis McMichael, 35, outside the truck with a shotgun.

Defense attorneys say Arbery lunged toward Travis McMichael and his gun, and that’s when Travis McMichael shot him.

WHAT IS A CITIZEN’S ARREST?

Greg McMichael told a police officer they chased Arbery to keep him from leaving the subdivision. He said they wanted “to hold him” until police could “come and you know, check him out.”

A state law on the books at the time said: “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.”

The actual words “citizen’s arrest” didn’t appear in the statute, and there was no obligation for a person who was trying to detain someone to declare that intention. Republican Gov. Brian Kemp signed legislation mostly repealing the law in May.

Arbery had appeared several times on security video inside a house under construction near the McMichaels’ house.

Travis McMichael had seen him outside the house about two weeks earlier and feared Arbery was reaching for a gun that night when he reached toward his pocket, Robert Rubin, an attorney for McMichael said in his opening statement.

Arbery’s behavior at the unfinished house would cause a reasonable person to believe a crime had been committed, Rubin said. That’s also why the McMichaels felt they needed to arm themselves, he said.

Prosecutor Linda Dunikoski said during her opening statement that Arbery was unarmed and gave the men no reason to suspect him of wrongdoing. They just assumed he had committed a crime, she said.

Melissa Redmon, a former prosecutor and now a law professor at the University of Georgia, said it could be a “hard sell” to convince a jury there was probable cause to initiate a citizen’s arrest.

"That’s based on what it appears they knew at the moment they confronted Mr. Arbery or, rather, the lack of information they had at the moment they confronted Mr. Arbery,” she said.

HOW DID ARBERY’S KILLING LEAD TO THE LAW’S REPEAL?

The citizen’s arrest law was approved in 1863 to round up escaped slaves and was later used to justify the lynching of Black people.

There had long been a push to repeal it. Arbery’s shooting broadened a national outcry over racial injustice and prompted state lawmakers to act.

The repeal legislation says witnesses and bystanders can’t detain people. Restaurant and shop employees can still detain people they believe stole something or who leave without paying. Licensed security guards and private detectives can also detain people.

Deadly force can’t be used to detain someone unless it’s in self-protection, protecting a home, or preventing a forcible felony.

Though the repeal law has taken effect, the defense is able to cite the old law since it was in effect at the time of Arbery’s slaying.

WHAT CONSTITUTES SELF-DEFENSE?

It is tragic that Arbery died, Rubin said. “But at that point, Travis McMichael is acting in self-defense. He did not want to encounter Ahmaud Arbery physically. He was only trying to stop him for the police,” Rubin said.

Georgia law allows the use of deadly force if a person reasonably believes another person is about to kill or gravely injure him or someone else. There’s no obligation to retreat first, as Georgia recognizes a person’s right to “stand your ground.”

But Georgia law does not allow someone to use force if he is the aggressor, unless he withdraws from the fight and effectively communicates that, and the other person continues to use or threaten to use force against him.

When he raised the shotgun, Travis McMichael was hoping to “de-escalate the situation,” but Arbery turned toward McMichael “swinging aggressively” with his fists, Rubin said. McMichael shot him out of fear that Arbery would get the gun and shoot him or his dad, Rubin said.

Prosecutors will likely argue Arbery was allowed to defend himself against a man who had been chasing him and was pointing a gun at him, Redmon said. A Georgia Bureau of Investigation agent said during a June hearing that he believed Arbery acted in self-defense.

Ultimately, the jury will have to consider the moments before the shotgun blasts rang out and decide which man was the aggressor and therefore not legitimately acting in self-defense, Redmon said.