(05-10-2020, 02:01 PM)B2hibry Wrote:

(05-10-2020, 01:42 PM)Bullseye Wrote: If we assume the pic on the right is one of Arbery, and the pic on the left is a still of the incident where he is murdered, then all we have is a pic of the murder victim.  There is no mistake of the victim here.  It is commonly accepted fact Arbery is dead,

If we are to surmise that Arbery had been previously arrested for a crime, so what?  A prior arrest for a crime does not trigger Georgia's citizen's arrest statute, nor does it override the requirements of Georgia's self defense law.

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My posts in this thread have been short.

Keep up.

You almost comprehended the point. You assumed a white guy is a racist using a picture but you aren't assuming Ahmaud can be criminally culpable based on a photo? White guy photo=no crime, Black guy photo=crime. No hypocrisy there? We should stick to what is a known entity and not build up some kind of obtuse narrative just for argument's sake. Especially a racially charged one. FYI, dead does not lawfully equal murder.

The point was immaterial.

I posted the pictures to show a) possible racial animus on behalf of McMichael instead of reflexively rejecting the possibility the way most on the right do; and b) the potential for McMichael NOT having enough information to trigger the citizen's arrest statute in the first place based upon possible mistaken identity.

Georgia's citizen arrest statute reads

Quote: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.

(Emphasis added)


Questions to consider at face value:

1.  Was the offense committed within his presence or within his immediate knowledge? 

2.  Was the offense a felony?

Even assuming Arbery had a prior arrest or conviction for burglary, it would be immaterial for the purposes if determining whether McMichael was there/had immediate knowledge when he supposedly committed the offense on 2/23.

As to question 2 even if you assume the video showing the individual entering that house is Arbery, and McMichael relied upon that video to gain "immediate knowledge" none of that is probative as to whether Arbery committed a felony in 2/23.

Georgia code 16-7-21  defines criminal trespass thusly

Quote:(a)A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person.

(b)A person commits the offense of criminal trespass when he or she knowingly and without authority:
(1)Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person for an unlawful purpose;
(2)Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden; or
(3)Remains upon the land or premises of another person or within the vehicle, railroad car, aircraft, or watercraft of another person after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.
©For the purposes of subsection (b) of this Code section, permission to enter or invitation to enter given by a minor who is or is not present on or in the property of the minor's parent or guardian is not sufficient to allow lawful entry of another person upon the land, premises, vehicle, railroad car, aircraft, or watercraft owned or rightfully occupied by such minor's parent or guardian if such parent or guardian has previously given notice that such entry is forbidden or notice to depart.
(d)A person who commits the offense of criminal trespass shall be guilty of a misdemeanor.

(emphasis added)

Conversely, Georgia defines burglary in 16-7-1 thusly

Quote:(b) A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwelling of another. A person who commits the offense of burglary in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years. Upon the second conviction for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than two nor more than 20 years. Upon the third and all subsequent convictions for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than five nor more than 25 years.

© A person commits the offense of burglary in the second degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant building, structure, vehicle, railroad car, watercraft, or aircraft. A person who commits the offense of burglary in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. Upon the second and all subsequent convictions for burglary in the second degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than eight years.

(emphasis added)

Assuming the individual on the second video shown entering the house is Arbery, and assuming he did not have permission to enter, how could McMichael have known his intent to commit a felony?  Was there anything missing that was taken by Arbery or damaged by Arbery?  How would McMichael have been present or otherwise have immediate knowledge?

It's far from established that Mcmichael was within his right to effectuate a citizen's arrest here.

Then there is the issue of self defense.

According to Georgia Criminal jury instructions...

Quote:GEORGIA CRIMINAL JURY INSTRUCTIONS (G.C.J.I. 2003)
GA  3.02.10 Justification; Use of Force in Defense of Self or Others
A person is justified in threatening or using force against another person when, and to the extent that, he/she reasonably believes that such threat or force is necessary to defend himselfYherself or a third person against the other’s imminent use of unlawful force. A person is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself/herself or a third person or to prevent the commission of a forcible felony.
 
O.C.G.A. §16-3-21
 
The State has the burden of proving beyond a reasonable doubt that the defendant was not justified.
 
State v. Shepperd, 253 Ga. 321 (1984) Bishop v. State, 271 Ga. 291 (1999) (Give the following only as appropriate.)
 
A person is not justified in using force, if that person
a) initially provokes the use of force against himself7herself with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or
b) is attempting to commit, is committing, or is fleeing after the commission or attempted commission of a felony (define arguable felony); or
c) was the aggressor or was engaged in a combat by agreement, unless the person withdraws from the encounter and effectively communicates his/her intent to withdraw to the other person, and the other person still continues or threatens to continue the use of unlawful force.
 

(emphasis added)

McMichael initiated the use of force against himself.  This was not a case where Arbery entered into McMichaels home and placed McMichael and his family in danger.

Arbery was running and unarmed when the McMicahels retrieved their weapons got the keys to their truck, entered their truck and pursued Arbery.

They drove past him in the street and cut him off.  He exited his truck with his shotgun.  What basis could there have been in Arbery's mind they had any authority, apparent or actual, to confront him in such a manner?  They weren't in police cars or uniforms.  There is no indication they presented law enforcement badges.  There was no reason for him to comply.  There was, however, reason to have a fear or apprehension of threat of imminent death or great bodily injury.

By their actions, they triggered the fight or flight reflexes in Arbery, and effectively precluded him from flight.

What the hell was he supposed to do?!?

People have noted that the McMichaels called the police not once but twice.  I have heard the recordings of both 9-1-1 calls and they raise questions.

1.  Why couldn't they clearly articulate exactly what the wrongdoing was?  The 9-1-1 operator prompts them repeatedly to clarify.  They said he was running down the street.  Running down the street is NOT in itself a crime. 

2.  If they called the police, why not let them handle it?  What were the exigent circumstances requiring them to confront Arbery?  Had he attacked other people?  Had he threatened anyone else?   If escape was a concern, why?  He was on foot, they were in a truck.  If they could clearly identify him (appearance and identity) why not rely upon the police to arrest him?  Was McMichael, a former police officer, somehow not trusting of the ability or willingness of the police department to apprehend a suspect on foot?

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