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Ahmaud Arbery's killers are on trial, as 'citizen's arrest' laws should be

Georgia’s citizen's-arrest law was enacted when slavery was still legal, and it was no less racist when three white men accosted Ahmaud Arbery.
Photo illustration: Image of hands in handcuffs, two pieces of paper partially read the words,\"Justice\" and \"Ahmaud\".
Ahmaud Arbery, a 25-year-old Black man, was shot and killed on Feb. 23, 2020, after being pursued by three white men.Anjali Nair / MSNBC; Getty Images

Ahmaud Arbery, a 25-year-old Black man jogging near Brunswick, Georgia, was shot and killed on Sunday, Feb. 23, 2020, after being pursued by three white men: Gregory McMichael, Travis McMichael, and William Bryan. The three men face a slew of charges, including malice murder, felony murder and aggravated assault. Jury selection is now underway in their trial.

The defendants appear to believe that their claim about making a citizen’s arrest exonerates them from the charge that they targeted Arbery because of his race.

The jury will be asked to decide if the men were right to try to detain Arbery in the first place. The defendants claim that they believed Arbery was connected to burglaries in the neighborhood and that they were conducting a citizen’s arrest. The McMichaels armed themselves and pursued Arbery in their vehicles. The first two prosecutors who investigated the case accepted the citizen’s arrest defense, including a prosecutor who was accused of showing favoritism to the defendants and later indicted on a misconduct charge. A special prosecutor is now in charge of the case.

The defendants appear to believe that their claim about making a citizen’s arrest exonerates them from the charge that they targeted Arbery because of his race.

Their attempts are futile, however, because in the United States, citizen’s arrest laws have a racist past. Georgia’s law was enacted in 1863, two years before the Civil War ended and when slavery was still legal in the state. The context surrounding the law’s emergence reveals much about its goals. It was introduced while Georgia was a Confederate state and most of its military was stationed in Virginia. As Joseph Margulies, professor of law and government at Cornell University, told NPR, the law was “basically a catching-fleeing-slave law.”

Citizen’s arrest laws have their roots in the European practice of private arrests, where citizens could detain someone they witnessed committing a crime. In Colonial America — before the establishment of police forces — they were a method of maintaining peace and safety. However, the spread of these laws in America coincided with the rise of slave patrols. Like the growth of law enforcement in the United States, we should not view citizen’s arrests as race neutral.

In rural areas, where the number of enslaved people often outnumbered the white population, slave patrols were formed to police the activities of the enslaved. The earliest slave patrols, formed in the Carolinas in the 1700s, set out to monitor the movement of the city’s enslaved population and prevent any uprisings. The citizen’s arrest laws were similarly designed to empower (white) private citizens to “protect” their communities.

“In theory,” Rashawn Ray, a senior fellow at the Brookings Institution and a professor of sociology at the University of Maryland, argues, “citizen’s arrest laws are laws that allow an ordinary person to see a criminal act occurring and be able to retain a person, to hold a person down, stop a person until law enforcement arrives.”

In practice, however, these laws are misused and ultimately lead to racial profiling. They have become a means by which private citizens can intervene simply because they deem another individual to be suspicious or doing something questionable — even if the act does not violate any laws. As was the case with Arbery, this has had deadly consequences.

Like the growth of law enforcement in the United States, we should not view citizen’s arrests as race neutral.

After the Civil War, Southern states crafted “Black Codes” that sought to control the recently freed population and encouraged law enforcement and white vigilante groups to use violence in the name of securing “law and order.” In the 19th and 20th centuries, this was most apparent when white mobs — sometimes with police cooperation — lynched Black men and women to enforce the racial hierarchy.

Testifying before a legislative hearing in Georgia in 2020, the Rev. James Woodall, state president of the Georgia NAACP, said that “although not always explicitly invoked, Georgia citizen’s arrest statutes supported, or allowed, for many of these lynchings.” He also noted two specific instances when white mobs invoked the law. In January 1912, four African Americans were lynched in Elberton, Georgia, after they had been detained under the state’s citizen’s arrest law. The group had been suspected of killing a white planter who had sexually assaulted Black women and girls. In July 1946, two Black couples were dragged from their cars and shot by a group of white men in Walton County, Georgia. Those white men also claimed to have been conducting a citizen’s arrest.

Those are two of many cases in Georgia alone where citizen’s arrest laws have been used as a cover for racist violence and as a legal strategy to evade convictions. From 1882 to 1968, the NAACP has documented an estimated 531 acts of lynching in Georgia — a total second only to Mississippi’s.

Over the last several years, a number of high-profile cases have brought the racist roots of citizen’s arrest laws to the forefront. As Laurence Ralph, director of the Center on Transnational Policing at Princeton University and author of "Torture Letters: Reckoning With Police Violence," puts it, “The birth of the Black Lives Matter Movement is a result of a botched attempt at a citizen’s arrest.” In 2012, self-appointed neighborhood watchman George Zimmerman shot and killed teenager Trayvon Martin and was later acquitted of second-degree murder. In 2019, Kenneth Herring, a 62-year-old African American man in Georgia, was shot and killed by a white woman executing a citizen’s arrest after Herring reportedly fled the scene of a hit-and-run accident.

Arbery’s killing, therefore, falls within a tragic pattern of Black people losing their lives at the hands of white citizens acting on citizen’s arrest laws. This is no small matter. “In a country where African Americans have historically been second-class citizens,” Ralph cautions, “citizen arrest laws will negatively impact Black people.”

Georgia made it illegal this year for bystanders to attempt to arrest someone they see committing a crime, thereby eliminating the law the three defendants cited to accost Arbery. Revising — or completely dismantling — these laws are necessary as we try to curb the pattern of racist violence in the United States. Perhaps the trial of Arbery’s killers will compel other states to follow Georgia in repealing these dangerous laws. They are rooted in racism and continue to give people permission to act on their racist impulses.