From Rittenhouse to Arbery, self-defense rules are on trial in America

The killing of Ahmaud Arbery in Satilla Shores, Ga., shocked the nation, with images of a black man pursued by three white men in trucks. The obvious racial elements quickly defined the trial. However, the three defendants were claiming a right that is hundreds of years old, allowing citizens to arrest suspected felons. Similarly, there is a call to reduce self-defense laws after the acquittal of Kyle Rittenhouse in Kenosha, Wis.

These cases are only the latest controversies over common-law defenses, which are unlikely to be resolved by proposed reforms. They are the quintessential jury decisions on what is reasonable in situations that defy easy definition. 

In the Arbery case, Judge Timothy Walmsley delivered a haymaker to the defense on the eve of closing statements. The court ruled that Georgia’s prior citizen’s arrest law is only applicable if a person sees a felony committed and then acts without delay. That would seem to remove a core defense that the three defendants were chasing a person suspected of a series of crimes over the last year. Bob Rubin, the attorney for defendant Travis McMichael, objected that “if you are going to instruct the jury as you say, you are directing a verdict for the state.”

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Judge Walmsley simply responded: “I understand the significance of this charge.” The defense could appeal the judge’s ruling, and likely will do so with any conviction.

In reality, the citizen-arrest law being applied in the case was already rescinded following the outcry from the Arbery shooting. The new law in Georgia removes the right of bystanders or witnesses generally to detain people. (The new law does allow business employees to detain people suspected of theft, including private security and restaurant employees.)

The history of Georgia’s citizen-arrest law is highly controversial. Indeed, the problem is that the court must rely on past courts interpreting a law with a horrific legacy, not just during the Civil War but later, during the Civil Rights movement. The law was created in 1863 and designed to allow whites to capture fleeing slaves.

Even after the Civil War, Georgia saw abuses of the law, as in the case of McPetrie v. State, 587 S.E.2d 233 (2003), in which several men suspected another of theft. They bound him, hanged him by his feet, beat him with a plastic bat and used a stun gun while interrogating him about items missing from a store; they defended themselves against a false-imprisonment charge by claiming to have acted under the citizen-arrest provision. The court rejected the claim and held that the men sought “to bludgeon a confession out of him or administer [their] version of vigilante justice. And the defense of justification is not so broad as to permit a private citizen to mete out judgment as he sees fit.”

The original Georgia law was based on a more ancient right of citizen’s arrest, a power used in modern times by groups like the Guardian Angels to police urban areas. In medieval times, citizens were not just allowed but expected to arrest criminals. This included the duty to respond to a “hue and cry” of others identifying a criminal and seeking help. England’s Statute of Winchester in 1285 stated that citizens should "follow them with all the town and the towns near, with hue and cry from town to town until that they be taken and delivered to the sheriff."

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American courts, however, developed a distinction between felonies and misdemeanors, out of concern over vigilantism. Under the common law, a person could arrest persons for felonies, or for misdemeanors when the misdemeanors were committed in their presence.

Georgia’s elimination of citizen’s arrests in most cases will not end lethal confrontations. Citizens still are allowed to follow suspected criminals; in a confrontation, they still are protected by self-defense rules. That is what George Zimmerman successfully used in his trial over the 2012 killing of Trayvon Martin in Sanford, Fla.

Moreover, Georgia — like many states — still retains its “stand your ground” law, which does not require retreat before someone defends themselves. In Beard v. United States, 158 U.S. 550, 562 (1895), the U.S. Supreme Court declared that if “a person, being without fault, and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force,” including lethal force.

And deadly force still can be used to protect oneself or one’s home or to prevent a forcible felony. Dozens of states (including Georgia) have “Castle Doctrine” laws. These laws, sometimes called “Make My Day” laws (a reference to the famous Clint Eastwood movie line), allow lethal force against anyone who unlawfully enters a home. Some states have extended those laws (sometimes called “Make My Day Better” laws) to cars and businesses. Those laws often allow the use of lethal force against unarmed intruders.

Even reducing the power of citizen arrests may not sit well with citizens in states where politicians are calling to defund police or reduce their ranks.

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Some are going further — particularly after the Rittenhouse acquittal — to demand a similar reduction of self-defense rules and to make that more difficult to claim as a defense at trial.

That will not be as easy as eliminating the power of citizen arrests, however. While much has been made of the Wisconsin self-defense law as being highly protective of those claiming the privilege, it is not substantially different from most other states. The common law has long allowed people to use lethal force when they reasonably believe they are faced with a threat of serious bodily injury or death. To establish the intent to murder, a prosecutor must still prove that someone acted without legal cause or privilege. That was the element that proved out of reach in the Zimmerman case.

With crime rising nationally, it is doubtful that many citizens would support changes to require a higher level of proof that they had to use potentially lethal force when attacked. Even if Wisconsin had flipped the burden to require people to prove the need for self-defense (instead of prosecutors proving no such privilege), the Rittenhouse case likely would have resulted in the same acquittal. The fact that Rittenhouse used force only after being attacked created ample basis for self-defense.

Likewise, imposing higher requirements on the use of a lawful weapon could raise constitutional problems. CNN legal analyst Jennifer Rodgers called for changing open-carry laws in Wisconsin and other states. But the Supreme Court will soon rule on the Second Amendment protections to carry such weapons in public. Even if you limit open-carry, it is unlikely you could constitutionally bar the right to carry such lawful weapons generally.

That is why the cathartic call to limit citizen-arrest or self-defense powers are unlikely to reduce these highly divisive, painful cases. These are inherently murky incidents, heavily imbued with our social, racial and economic divisions. That is precisely why we have long relied on juries selected from these communities to render judgments on the use of force. These cases are contextual rather than definitional in terms of their verdicts. After hundreds of years, whether someone reasonably used force remains an elemental, even primal question, for jurors.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.