I've been slow to keep up with the outrages du jour, so it was only the other day I heard about the shooting of a guy in Florida for "just going out for a jog while black".
I know the media and the grievance cultists have been looking for another genuine Dylan Roof, and demand has so exceeded supply that nearly every supposed hate crime - Smollett, anyone? - has been faked by the supposed victims.
"But, there's video!"
OK - maybe the NAACP struck gold again after all this time, but I was still skeptical that the story of our innocent "he was such a nice kid just out for a jog" wasn't the whole truth, possibly to the extent that it wasn't the truth at all.
First - Stefan Molyneaux on the video:
Also - Self defense lawyer Andrew Branca has commentary here but the video discussion is behind a paywall. At the time of writing it is still available for "free" by registering.
Finally -Stefan has an updated vid with more of the available video evidence:
So. "Jogger?"
Why is this relevant? Sure, the easy high-school argument is that even if AA had a bad history, "simply" jogging through the neighborhood wasn't reason to detain him via citizens arrest, and then shoot him.
That said - running a 10K can tire out a reasonably fit person. Running twice as far is easily a 2-3 hour run. Maybe AA was too poor to afford a $10 pair of cheap gym shorts, or maybe he was still ignorant, after spending enough hours of training at running to run a 20-mile course, of how much cargo shorts can chafe. A lot of people have claimed he was a jogger, yet I doubt we'll see much evidence of him running cross-country, prepping for a marathon, or doing other cross-country training.
He certainly wasn't jogging up to or through the house he almost certainly went into.
The short version is that it was theoretically possible he was "just" a jogger who "happened" to be going through that neighborhood ten miles away from home, in clothes not appropriate for running. It's also implausible enough though to be odd.
There's also the issue of various burglaries, and the 9-11 report and video. Videos, actually, over several months going back to October. Someone looking a lot like AA was caught on video entering an under-construction home to search it. This most recent time, a neighbor called 9-11. The person on video left.
Even if the McMichaels, the two men arrested for the shooting, had not actually seen the most recent video, they had apparently seen previous video of someone who looked like him in the neighborhood behaving suspiciously, they reported they saw him running. This brings me to two important points. The first is that the father had years of experience in the local police force as an investigator, and had previously worked a case where AA had violated parole for shoplifting, said parole being for bringing a firearm to a school ball game. The second is that it is possible to tell not only mood, but identify people from whole-body movement and gait. A person out for a simple jog runs differently from someone who's running away from something, even if they've slowed down to a trot. Even a sprint leg looks different than "running away".
The short version is that the father knew who AA was and his history - including knowing he had a history of carrying arms illegally - and could reasonably identify someone as running away from the scene of a crime vs just "jogging" - though the latter may be utterly subjective. Incidentally, it's possible AA would have known Gregory McMichael. This possibility at being "made" in the vicinity of an attempted burglary may also have influenced choices.
There is an argument that the McMichaels were unwise in choosing to do the citizens arrest as they did, but the arguments that it was illegal fall flat.
Relevant law for citizens arrest:
§17-4-60. Grounds for arrest
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.
He doesn't have to have immediate knowledge for a felony - just for lesser defenses. For a felony, "reasonable and probable grounds" is sufficient - and seeing someone out of place with a known criminal history who had previously been seen acting in a suspicious manner running by very likely constitutes legal grounds. They definitely didn't have to see the felony in person.
Also - even if the home is unoccupied or under construction, it's still felony burglary:
Georgia’s felony burglary statute
§16-7-1. Burglary
Georgia case law qualifying home under construction for felony burglary:
Smith v. State, 226 Ga. App. 9 (GA Ct. App. 1997)
Georgia case law qualifying tool shed for felony burglary:
Mezick v. State, 291 Ga. App. 257 (GA Ct. App. 2008)
Short version - yes, even an unclosed house under construction qualifies.
This finally brings us to the five elements of self defense.
Innocence: You can’t start the fight—you can’t have been the initial aggressor, and then justify your use of force as self-defense.
There is an argument, especially in the race-husting camp that pretends or believes Michael Brown did nothing wrong, and that Dylan Roof was feted at a Wendys before getting jailed after being arrested, that racism is omnipresent and constant, and black lives are always in danger, such that two guys in a neighborhood telling him to stop and account for himself was a threat of deadly force and justified a deadly-force response.
See my earlier note of how much the demand exceeds supply.
Since open carry is legal in GA, it's difficult to tell from the video, especially since the earlier apparent encounter where the McMichaels tried to stop AA and he kept running, if weapons were actually brandished and what threats were issued. Note - to race hustlers, simply being suspected is a threat, much like telling a BPD chick "no" is an attack. Also - it is illegal to conceal a loaded shotgun when carried, so that would have had to be carried openly anyway.
The upshot though is that even with the McMichaels positioning the truck to cut him off, the initial encounter was over and this was a new encounter. I can't tell if the shotgun was raised or pointed down before AA went around to the right of the truck, apparently trying to avoid the younger McMichael at that point, because he wouldn't have seen the gun raised again until he had already looped out and was running back across to assault the son. The timing is close, but Aubrey appears within reach of the shotgun when the first shot goes off, and his woulds are consistent with reaching for, or even having grabbed, the end of the shotgun.
Since the moment AA shifted to grapple and to grab the shotgun is also the moment he went to "lethal threat", a lot will depend on how the court and jury see AA as an innocent man threatened by the open display of guns by two people unreasonably suspecting him of a crime. If AA is almost certainly identified in videos searching for stuff to steal, and even more so, more than one, then it's going to look like an attempt to escape arrest, even if said arrest was unwisely executed. Why? Because citizens arrest perforce also enables the use of force to detain someone.
In short, the second AA could reasonably be considered a suspect in an ongoing series of crimes, he could be detained, and force brought to bear to do so. I'm not sure if that specifically takes "brandishing" laws off the table, but if you're going to credibly demonstrate that use of force to avoid arrest is unwise, then means to deal with resisting arrest need to be communicated. Note to the idiots out there: this doesn't mean "kill immediately" but if that was the intent, there was a long time AA was running up toward them they could have simply potted him at range if the intent was to kill him outright.
The timing and nature of the attack covers the second element, immediacy. Instead of running past AA swerved into the younger McMichael and went to grapple and punch, trying to rip the gun away. Even the first trigger pull - it is unknown if the shot was deliberate, reflex upon being attacked, or because the gun was yanked forward with the finger in the trigger guard, any of the above are possible, and the later, deliberate shots were well after AA was attacking the younger man and fighting for possession of the shotgun.
Proportionality - Before and during. "Why bring guns at all?"
Let's pretend for a moment that there was no foreknowledge other than the previous surveillance vids. Big guy goes running by. Even two fit people would have problems reliably subduing a person physically bare-handed without extensive and current training, and even then, without getting put in the ER. The person has likely exited a construction site that likely contains a number of tools that make great hand to hand weapons, such as hammers. Didn't end up having one? Doesn't matter - you have to address the threat that presents, and ignoring the possibility of a hammer or knife or, given previous behavior, another weapon already on his person is a way to end up a dead citizen. Sure, it's easy to scoff at "he reached into his pants before which lead the McMichaels to believe he might be carrying" - but in-the-waistband unholstered carry is not uncommon among people prone to criminal behavior. It goes with that poor future planning and impulse control.
In short, there was a high enough probability he could be armed with a lethal weapon, even "just" a hammer, that the threat had to be accounted for.
That doesn't account for the fact that Gregory already knew him to be a criminal with a history of bringing firearms along.
During?
A big guy tries to rip your gun out of your hand. Unless there's 100% chance he's going to, after attacking you (already likely a criminal act) , simply stop and walk away, he is an attacker going for a gun in a fight, and a threat to life and limb. Lethal force is on the table for self defense.
Avoidance - Duty to retreat, etc. I'm fuzzy on stand your ground/etc. over in GA, but if the circumstances warrant a citizens arrest, then you perforce are not retreating, and may actually move to initiate contact, though, again, not violence. The McMichaels had plenty of opportunities to deal death and violence, and chose not to until rushed.
A lot here will hinge on whether there was a reason to perform a citizens arrest - not again this is true even if AA didn't actually take anything this time, as appearing to have the intent justifies suspicion. If so - then initiating an encounter with AA, and being armed, are all reasonable excepting of course the "hands up don't shoot" crowd and those who are looking at this through the lens of white racism.
Reasonableness -
Lawful use of deadly force in self-defense must be “reasonable.” A person must reasonably fear death or grave bodily harm. A person does not have to actually be in danger of death or grave bodily harm. The danger needs to be apparent not actual, though it cannot be purely speculative. For example, if a child points a toy gun at you, you cannot reasonably shoot that child. But if someone robs you at gunpoint with what turns out to be a toy gun, you may be able to shoot that robber.
If they were lawfully performing a citizens arrest on the reasonable suspicion that there were grounds to do so, they were not the aggressors.
The danger was imminent to the most casual observer who's not wedded to "hamds up don't shoot."
The level of danger was indeed that of "deadly force."
There was no duty to retreat if they were to detain someone under citizens arrest, and from their positioning and posture, the McMichaels tried to keep out of reach in case AA was indeed armed and aggressive. The fact that AA got his hands on an already in-hand shotgun shows the truth behind the Tueller drill.
Branca notes that both could be right. The McMichaels could have indeed had racist motives for choosing a black person to arrest where they may have possibly let a white person pass - yet I doubt we will find cases of white people regularly peeking through the construction site that were then subsequently ignored - AND still had every legal and moral grounds for stopping AA. He also reminds us that we are not required to make perfect decisions, just reasonable ones. As Molyneaux notes in his second video - you don't have to have stolen something to go into a house or store with intent to . Sure, a store is a public venue so simply picking up things without shoplifting them doesn't demonstrate intent, but repeatedly going into private property to search the site goes a long way to demonstrate it - especially when there's a concurrent string of robberies (some reported to the police, some not) and no-one else is caught doing so.
If anything, unless one truly believes that the McMichaels and police would have simply gunned down AA on camera while knowing the camera, or at the very least, a witness, was there - my understanding is that they called on the neighbor to help and follow - the worst AA would have gotten was criminal trespass. Without material stolen goods, intent would have been difficult to prove.
Maybe AA's head was filled with terror tales of white racism. Maybe he knew he was guilty, and fled - or in this case, attacked - where no man pursueth.
There are of course the people who fully believe that McMichaels and co would have simply gunned AA down on camera/in front of witnesses, and so his life was in danger, and he was justified to attack the McMichaels. I know some of these in person, so they actually exist and aren't just noisy outliers on twitter sucking up the oxygen.
"How could anyone think that releasing the video would help prove their innocence?"
This last question was asked about how the "jogging" video was released by someone training to go to law school, who had worked as an intern. The short answer I could give was that it depends on who started the fight - and that whatever they may think of a couple guys with guns telling a black man to stop - even assuming the story that he was "just" jogging through was true - and the video shows AA closing to fighting range instead of continuing.
This also brings us to moral mindset. Paraphrased, seen on Reddit :
Your country allows random citizens to stop and arrest people? Sick!
Citizens arrest is a de-facto acknowledgement that the police cannot be everywhere, especially in somewhere relatively rural. That if a crime is being committed, and it is sufficiently important to risk life and limb, that the perpetrator can be caught and detained so that justice and the truth of the matter can be sought. An empty house may not have quite the risk factor of running onto a resident, but that factor still exists, and with a person with a criminal history including weapons charges, is not far removed from being willing to go into a supposedly empty house that is not under construction.
Not allowing citizens arrest (and in some places, self defense) requires more police, more police power, and less to the subjects who are no longer citizens. It's a tradeoff, balancing the risks a citizen is willing to take for unlawful detention or death or injury of himself, as well as wrongful death or murder, if he misreads the situation vs an increase in law and order. A moral citizenry that don't sit like cowed sheep waiting for permission will use this power responsibly more often than not. Subjects cannot be trusted by this power, and are afraid of it.
And yes, Karen's will abuse it. I'm glad Drejka got his prison time, much less so that someone had to die because of both his own and Michael's lack of judgement and temper. He at least suffered consequences for being a "Karen", male variety. The more traditional type should as well. The power to accuse and get arrested should be tempered for consequences for abusing the system.
And no - see above - this does not appear to be a case of abusing the system.
Criminals already don't care - but then they would not try a citizens arrest, they're more likely to just do a drive-by.
