Race and the Murder of Ahmaud Arbery

T here was an indefensible assumption at the root of Ahmaud Arbery’s killing in a quiet coastal Georgia town. Contrary to everything you’ve read and heard in the mainstream media, it was not a racial assumption. It was a legal assumption.

The three men on trial for Arbery’s murder assumed that there was probable cause to believe Arbery had committed a felony, an assumption based on woefully weak evidence. They were suspicious because the 25-year-old Arbery was running from a nearby lot on which a home was under construction. The lot had been vandalized before, and Arbery had been caught on the premises by surveillance cameras on prior occasions. Although he was far from the only person to enter without the owner’s permission, and there was no evidence that he had stolen anything, the three men suspected he was running on February 23, 2020, because he must have robbed the site.

Even if the men knew that Arbery matched the description of a man depicted in the surveillance videos, and even if they believed he was acting suspiciously, they had not seen him commit a crime, and they had no real evidence that he had done so. There was no legal basis to detain him, much less make a citizen’s arrest under state law. There was no basis to use force against Arbery, much less lethal force.

Travis McMichael, his father Greg McMichael, and their friend William “Roddie” Bryan chased Arbery down, cornered him, and endeavored to capture him. Travis McMichael ultimately shot and killed Arbery, who was unarmed and who was entirely justified in trying to resist. The three defendants’ conduct amounted to murder and other crimes because their suspicions and perceptions did not amount to legal cause.

Yet state prosecutors have not proven, or even charged, that the three white men killed Arbery because he was black.

As summations in the Georgia trial commence this week, you are to be forgiven if — as with the just-completed Wisconsin trial at which Kyle Rittenhouse was acquitted — you have a distorted understanding of what the case is about thanks to press coverage.

It is always reported that the accused are white and Arbery was black. We are also told that the McMichaels and Bryan are charged with what is called malice murder. This state-law term is rarely explained, so it would be understandable for you to suppose that malice must refer to racial prejudice. “Malice murder,” however, has nothing to do with race, or indeed with bias of any kind. Under Georgia law, it is simply the unlawful causing of another person’s death “with malice aforethought.”

For homicide in Georgia, the mens rea (mental element) prosecutors must prove beyond a reasonable doubt is referred to as malice rather than intent. These concepts are closely related. Georgia requires prosecutors to establish malice, express or implied.

“Express malice” is similar to what’s usually referred to as “intentional murder.” It applies when a person has conveyed a deliberate intention to kill “manifested by external circumstances capable of proof” — for example, I say, “I’m going to kill X,” then I grab a gun and shoot X to death. By contrast, “implied malice” is akin to “depraved indifference,” which we discussed often in connection with Derek Chauvin’s killing of George Floyd. It applies to a killing that is not prompted by “considerable provocation” and that demonstrates “an abandoned and malignant heart.” To take two examples, you bump into me, by accident or even on purpose, and I react by pulling out a gun and shooting you to death; or I shoot a gun into a crowd, not aiming at anyone in particular but heedless of the lethal threat I am causing, and someone is struck and killed.

In the Arbery prosecution, the defendants are charged with malice murder on the implied-malice theory. Whatever the defendants may have believed about Arbery’s actions, they did not warrant even a forcible response; so the use of deadly force (by Travis McMichael, aided and abetted by his father, Greg, and by Bryan) proves the degree of depravity the statute calls “an abandoned and malignant heart.”

Significantly, this is not because Arbery was black and his assailants were white. It is because, as a matter of law, Arbery’s actions did not justify his assailants’ use of force. For the defendants to be guilty, it matters not a whit that Arbery was of a particular race, or of a race different from the accused.

Besides the count of malice murder, the indictment alleges eight other charges: four counts of felony murder, which is a killing unintentionally caused during the course of committing a felony, along with four counts that charge the felonies said to underlie the felony-murder charges. Those four felonies include two aggravated assaults (arising out of the chasing and cornering of Arbery) and two false imprisonment counts (actual and attempted false imprisonment in detaining and trying to arrest him).

Now, don’t get me wrong here. I am not saying that race necessarily had nothing to do with what happened to Ahmaud Arbery. It is entirely possible that the three defendants assumed the worst about Arbery out of bias. They may well have been inclined to draw a negative inference about a young black man that they would not have drawn about a young white man in the same circumstances.

There is, after all, some ambiguous evidence along these lines. Travis McMichael’s truck bore a vanity plate depicting the former Georgia state flag, which prominently displayed the Confederate Battle Flag. Such imagery could imply racism, though it is also legal to exhibit the flag, which is redolent of the state’s rich history.

Moreover, when Greg McMichael called 911 before the shooting, prosecutors stress that he told the dispatcher a black man was running down the street, not that the black man had committed a crime. But if the elder McMichael, a former police officer, did refer to Arbery’s race, it was likely because he knew that police had been showing people surveillance photos of a black man at the nearby construction lot; the man he saw running (Arbery) did in fact match the man in the surveillance photos (also Arbery). And note that McMichael was not the first to call 911; a different neighbor had done that upon seeing Arbery running away from the lot. That is, a sensible interpretation of the evidence is that the elder McMichael called 911 because he believed he’d seen suspicious activity, and he referred to Arbery’s race because doing so is standard procedure when describing an unknown suspect to police.

Obviously, none of this explains or excuses the chase, the attempted capture, or the use of excessive lethal force to kill Arbery. Even though Georgia authorizes citizens to make arrests (i.e., to detain suspected criminals until the police arrive), the citizen must have adequate legal cause to execute an arrest. Mere suspicion is insufficient, even if it is a good-faith suspicion. (It wouldn’t be sufficient for a police officer, either.)

At a minimum, it appears that Travis McMichael, who shot Arbery multiple times, should be convicted of murder, in addition to the other charges. Furthermore, the evidence would support holding both Greg McMichael and Roddie Bryan accountable for the murder since they were willing participants in the chase, even if they did not pull the trigger. Consequently, if the state convicted all defendants on all charges, that would be a just result — it is the verdict I would vote for. Yet I cannot say it would be irrational for the jury to acquit Bryan and the elder McMichael of murder, while convicting them of the assault and false-imprisonment charges. That, too, would be a just verdict.

Still, it is important to be clear: The defendants were indicted because their suspicions fell short of legal justification to assault, detain, and use lethal force. They are not charged with doing these things solely because of Ahmaud Arbery’s race.