Untangling the Ahmaud Arbery Self-defense Trial

Three defendants have claimed their shooting of Ahmaud Arbery was self-defense.

Ahmaud Arbery was a 25-year old man who was shot and killed in broad daylight allegedly by three men, Travis and Gregory McMichael and Roddie Bryan, who claimed he was responsible for burglaries that had occurred in their neighborhood. Though the shooting happened in February 2020, the men allegedly responsible for Arbery’s death were not arrested until some 10 weeks later, when cell phone video of the encounter was leaked online, causing a national outcry for the arrests of the McMichaels.

Interestingly, the defense has claimed that the three were acting in self-defense when they confronted Arbery while he was out on a run. Does their argument hold water? Is there any similarity between it and the Kyle Rittenhouse case?

The simple answer to those questions appears to be an unequivocal ‘no’.

If you haven’t read my previous post on the Kyle Rittenhouse trial, I recommend you do so to help orient you to an appropriate application of the IMOP/MIOP model in a clear case of self-defense.

In short, IMOP is an acronym for Intent, Means, Opportunity and Preclusion. The first three of those contingencies must be met by a threat before a claim of self-defense can be made. The fourth, preclusion, must be accomplished if possible by the defender (in some, but not all jurisdictions).

Let’s look at the actions of the McMichaels and Mr. Bryan as their actions relate to IMOP/MIOP.

Intent

In order for the defendants to claim self-defense, Arbery would have had to have implied or otherwise indicated an intent to cause them grievous bodily harm or death at the moment at which the lethal force was applied. Watch the video to see if he performed any act that would imply that he was intent on harming anyone.

Viewer discretion is advised:

The video clearly shows Arbery running down the street. Two individuals confront him as he passes around the truck, which is blocking his passage down the street. While the shots are clearly heard in the video, voices are less clear, so we can’t know precisely who was saying what. We do see that Arbery passes the truck on the passenger side, opposite of the driver (who is seen standing on the driver’s side of the truck as Arbery approaches). He is showing a clear intent to NOT engage the defendants.

By this act alone, Arbery appears to try to avoid confrontation. It’s only when the driver, Travis McMichael, crossed to the side of the truck where Arbery was passing, that a confrontation occurred.

By his own admission, McMichael did not inform Arbery that he was making a citizen’s arrest (as the defense contended was the case prior to McMichael’s testimony), thus it could be argued that Arbery was the one acting in self-defense against a threat with a shotgun.

Nevertheless, as far as intent is concerned, the defense fails.

Means

In order for the defendants to claim self-defense, Arbery needed to have the means to cause grievous bodily harm or death to his would-be victims. In the video, an object that appears to be a hammer is visible in the street as the second vehicle approaches the McMichaels’ truck (see the video above at 21 seconds). It was alleged by some commentators that Arbery was carrying the hammer and dropped it as he was approaching the McMichaels.

Whether the hammer was Arbery’s or not, the fact that the hammer was in the street and not in Arbery’s hand removes its possible use as a weapon against the defendants. The video appears to show that Arbery is empty-handed as he wrestles with McMichael just before being shot.

Without a weapon or any other means to cause serious bodily harm or death to the three defendants, the self-defense claim fails.

Opportunity

Did Arbery have the opportunity to harm the men who are claiming self-defense? He was running toward their vehicle, thus closing distance between himself and the defendants. With each step, he increased the potential to bring harm (given that he was unarmed and would have to use his bare hands to injure them).

But then he veered off, away from the one defendant who was standing in the street, to the other side of the truck. By doing so, Arbery reduced the opportunity to harm Travis McMichael. It wasn’t until McMicheal approached Arbery that the opportunity to do harm arose.

In other words, Travis McMichael closed the distance and created the very opportunity Arbery needed to hurt him, thus eliminating any claim that Arbery had the opportunity to bring harm.

One cannot create the conditions that require self-defense and then claim self-defense.

The opportunity provision of the defendants’ self-defense claim fails.

Preclusion

Under Georgia law (16-3-23.1), the defendants had no duty to retreat. There are, however, other requirements in the statute that state that the situation must justify the use of non-lethal or deadly force.

Given the failures listed above for intent, means, and opportunity, the justification for the use of deadly force (since that is what the defendants used against Arbery) is absent.

Final Thoughts

Travis McMichael took the stand in his own defense during his criminal trial. In that testimony, he stated that the brandishing of a firearm is a means of de-escalation: “He [McMichael] also spoke about how drawing a weapon can sometimes deescalate a situation, particularly if it’s pointed at ‘anybody that is causing the threat — or that may be the threat at that time.'” (NPR.org)

Such a claim is absurd on its face, particularly after Travis McMichael pursued Arbery, drove past him, ordered him to stop, stopped ahead of him, exited the truck, and pointed a shotgun at him – all of which escalated the situation.

Arbery was not armed at the time, thus McMichael’s use of lethal force against him precludes the self-defense claim due to the excessive nature of the defense.

Roddie Bryan’s culpability is less certain (he was the one following Arbery down the street while recording the incident on his phone). The defense may be able to get him a lesser sentence than the McMichaels depending on the specific laws in Georgia.

While the jury has yet to speak on the matter, they are likely to get the case for deliberation on later today (November 23). Given the McMichaels’ apparent failures of adhering to the IMOP/MIOP model for determining the necessity of using deadly force in self-defense, I can’t see how the jury would return any other verdict than guilty in their case.

** Update – as of November 24, all three defendants were found guilty on multiple counts, including felony murder, assault, and false imprisonment.

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