The brutal killing of Ahmaud Arbery, by a retired member of law enforcement and his son in Brunswick, Georgia on February 23, will be seared in our memories.
Watching the video that was leaked and widely shared across social media platforms on May 5—almost two-and-a half months after Arbery was killed without an arrest—and reading the accounts sickened me.
According to the Georgia Bureau of Investigation and Arbery’s family attorney, the 25-year-old man was out for a run during broad daylight. He stopped at an open construction site, walked inside and looked, exited with nothing in his hands and continued to jog.
The video shows that he neither took anything, nor defaced or vandalized the property. He was not instructed to leave. It’s clear that his actions did not violate the Georgia Penal Code—not that his doing so would in any way have justified what happened.
After Arbery had left the construction site and continued with his run, former police officer and district attorney investigator Gregory McMichael and his son, Travis, retrieved guns, called the police and then chased their victim down. They reportedly told police that they did this because they “thought the man matched someone caught on a security camera committing a break-in in the neighborhood.”
Arbery was pursued, confronted and gunned down—Travis McMichael fired the shots, hitting Arbery three times, including twice in the chest—while trying to defend himself from his assailants. Even Molly Davis, writing for the ultra-conservative Federalist, called Arbery’s killing a “21st-century lynching.”
This case appears at every turn to be reflective of the structural racism in the system.
As horrific as Arbery’s death is, the initial law enforcement response to it demonstrated how systemic racism runs far deeper than the actions of two individuals. The handling of this case begs for a far-reaching investigation. It is filled with ethical conflicts, and appears at every turn to be institutionally biased and reflective of the structural racism in the system.
Glynn County Commissioner Murphy stated, according to a stunning report in the Atlanta Journal Constitution (AJC), that he was told by the Glynn County Police: “…officers at the scene concluded that they had probable cause to make arrests and contacted [local District Attorney Jackie Johnson’s] office to inform the prosecutor of their decision” on the day of the incident.
Johnson’s office, according to Murphy, told the cops not to make the arrests. And a second county commissioner also told the AJC that Johnson “shut them down to protect her friend McMichael.”
Gregory McMichael worked at the Glynn County Police Department, which investigated the shooting, from 1982-89. He then worked as an investigator for the Glynn County District Attorney’s Office for 24 years, retiring last year.
On May 8, however, DA Johnson blamed the Glynn County Police Department for the breakdown in the criminal investigation, denying the two county commissioners’ claims that her office told investigators not to make an arrest, reported All On Georgia. According to that report, Johson’s assertion was also “in contradiction to at least three Glynn County Police Department employees privy to the conversation.”
We have too often ignored prosecutorial misconduct, which is enabled and exacerbated by the near-limitless power that prosecutors wield in our system. Prosecutors are supposed to represent society and seek the truth. The mockery of these obligations that DA Johnson’s alleged actions represent undermines the very legitimacy of the criminal justice system. But it wasn’t only her.
On February 23, shortly after the shooting, Johnson had recused herself, citing a conflict of interest. The investigation was then assigned by the Georgia Attorney General to District Attorney George Barnhill of neighboring Ware County, who also recused himself from the case. This was at the request of Arbery’s mother, who noted that Barnhill’s son works for the Brunswick County District Attorney Office, for which Gregory McMichael had previously worked—and where, it turned out, McMichael was once involved in an as-yet-unspecified prosecution of Arbery.
Barnhill’s recusal letter violated, in my opinion, the ethical standards to which all prosecutors are subject.
But in Barnhill’s April 2 recusal letter, sent to the Glynn County Police, he stated that he did not see any grounds for arresting the McMichaels. He described their actions in a manner that contradicted both the video, which was available to him to view, and the subsequent investigation by the Georgia Bureau of Investigation (GBI).
“It appears Travis McMichael, Greg McMichael and Bryan William were following, in ‘hot pursuit,’ a burglary suspect, with solid first hand probable cause, in their neighborhood, and asking/telling him to stop,” Barnhill wrote. “It appears their intent was to stop and hold this criminal suspect until law enforcement arrived. Under Georgia law this is perfectly legal.”
Barnhill’s interpretation of the event would lead you to believe that the suspects observed a residential burglary in progress. That was not the case. According to the Glynn County Police, there had been no reported residential burglaries in this neighborhood from January 1 through February 23, when Arbery was killed, contradicting the suspects’ statements. Arbery was stereotyped and racially profiled—an all-too-common occurrence, as research has noted.
Barnhill’s recusal letter violated, in my opinion, the ethical standards to which all prosecutors are subject. On May 9, the National District Attorney’s Association (NDAA) issued a press release on Barnhill’s actions:
“In this case, District Attorney Barnhill determined he had a conflict in pursuing the investigation into Mr. Arbery’s death. At that point, his involvement should have ceased. Instead, District Attorney Barnhill wrote a letter, which has now become public, in which he offered a gratuitous and detailed opinion regarding the hurdles to any prosecution of the individuals involved in the shooting of Mr. Arbery.”
I can only hope that the NDAA will also issue a similar statement on the actions of DA Johnson, and that both DAs face a disciplinary Bar investigation for their inaction and obstruction.
But the shocking failures of the system don’t end there. Why, after Barnwhill’s recusal, was there a month-long gap in assigning a new district attorney to oversee the investigation?
The damning video that would disgust the whole country was available to Georgia law enforcement throughout this period. But it wasn’t until May 5, when the video was released—and a nationwide outcry from civil justice organizations, state and federal legislators, celebrities and many others built to a point where it could not be ignored—that any action was taken.
In a twist of irony, the attorney who released the video said he did so because he thought it would exonerate his friends the McMichaels. Instead, Liberty County DA Tom Durden responded by requesting assistance from the GBI, and 36 hours later Gregory and Travis McMichael were booked and held on felony murder and aggravated assault charges.
“Probable cause was clear to our agents pretty quickly,” GBI Director Vic Reynolds said. “I’m very comfortable in telling you there’s more than sufficient probable cause in charging felony murder.”
The GBI’s investigation continues, and might also bring charges against the neighbor who filmed the killing. The US Justice Department is currently “assessing all of the evidence” to determine whether to bring federal hate charges.
Structural Racism and Its Deniers
I have previously written about how the relationship between politics and law enforcement has become a vicious circle, perpetuating the demonization of people of color while fostering police identity politics. The resulting culture sustains the twin myths of white innocence and of black criminality, and has contributed to many deaths beyond that of Ahmaud Arbery.
I discussed the implications of this case with Professor Jody Armour, Roy P. Crocker Professor of Law at the University of Southern California, and a fellow board member of the Law Enforcement Action Partnership.*
“When two prosecutors saw nothing illegal on the video … they officially demonstrated the lack of concern for black citizens that gave rise to the movement for black lives.”
“The core concern of the #BlackLivesMatter movement from its very inception has been the indifference or outright hostility of state actors—especially police and prosecutors—to the value of black lives,” he commented. “Unlike private individuals, when state actors attack and disrespect citizens, they implicate all Americans because they act in our name and on our behalf.”
“Accordingly, when two prosecutors saw nothing illegal on a video in which an unarmed Ahmaud Arbery was hunted and shotgunned to death, they officially demonstrated the lack of care and concern for black citizens that gave rise to the movement for black lives,” he continued, “and that continues to undermine trust and confidence in law enforcement by socially marginalized communities across this nation.”
The racist double standard is illustrated if we juxtapose the Arbery case with the recent arrest of former Lakers basketball player Shannon Brown. It took 74 days for the McMichaels to be arrested. Shannon Brown was arrested immediately—after firing a rifle, hitting no one, when two strangers walked onto his property in Georgia earlier this month.
Where a warning shot for a home invader gets you swiftly arrested, but stalking and murdering a jogger keeps you free for months. https://t.co/arn21Ndby9
— Phillip Atiba Goff (@DrPhilGoff) May 8, 2020
In the last few days, the white-washing of the Arbery case has begun. Phillip Bump of the Washington Post analyzed a recent confounding statement made by a Fox & Friends host during an interview with Donald Trump.
“In the past, when there’s been a black-white shooting, a lot of times things get—spiral out of control,” Brian Kilmeade asked Trump. “What can you do to make sure justice is done and this doesn’t end up in a racial situation?”
Their total denial of the existence and impact of structural racism is far from unique.
Post columnist George Conway’s tweet perfectly sums up the doublethink in that question and in many Americans’ minds:
Fox & Friends host concerned that murder of unarmed black jogger with shotgun in southeast Georgia by white former cop and son in pickup truck who were then let go by former cop’s ex-colleagues despite having victim’s blood on hands might be turned into one of them racial things https://t.co/alKmJfsPq4
— George Conway, Noble Committee Chair (@gtconway3d) May 9, 2020
Those Americans include pro-Trump pundits like Tomi Lahren, who once compared #BlackLivesMatter to the KKK, and Candace Owens, who believes that racism was eliminated in America, infers that Arbery wasn’t a jogger because he was wearing khaki shorts, and holds that the media is pushing “a race-baiting LIE.” Their total denial of the existence and impact of structural racism in our society and criminal justice system is far from unique.
Any incident that ends in a death is tragic and I hope both families get the justice they deserve but to keep up with this “he was just out jogging” narrative is just as disingenuous as the bogus “hands up, don’t shoot” lie the media pushed for years. Enough. #AhmaudArbery
— Tomi Lahren (@TomiLahren) May 10, 2020
In my law enforcement career there were countless calls when I saw the full force of Americans’ xenophobia and racism. I saw how privileged white communities othered people of color, for participating in everyday activities that white Americans enjoy without fear of having the police called on them—or of being subjected to an illegal citizen’s arrest resulting in death.
Ahmaud Arbery was killed without cause for exercising his constitutional right to walk or jog freely in our society. No amount of demonizing him by pundits will ever change that fact.
A Far-Reaching Investigation and Future Measures
Although this is a critical first step, it is important that we do not view this case primarily as one of “bad apples” spoiling a functional system. In addition to examining individuals’ conduct, the investigation must analyze what allowed this to happen at a systemic level.
In 2014 The National Institution of Justice (NIJ) published a monograph titled “Mending Justice: Sentinel Events Reviews.”
As a nation we have the ability to identify criminal justice wrongdoing … But our political leaders lack the will.
NIJ recognized that unlike industries such as transportation, medicine or other “high-risk enterprises,” the criminal justice system had no forward-facing oversight (such as the National Transportation and Safety Board) to investigate errors of justice in order to prevent them occurring in the future.
The NIJ defined the “criminal justice sentinel events” that should trigger such investigations as follows:
What would constitute a sentinel event in criminal justice? Wrongful convictions, certainly, but also “near miss” acquittals and dismissals of cases that at earlier points seemed solid; cold cases that stayed cold too long; “wrongful releases” of dangerous of factually guilty criminals or of vulnerable mentally handicapped arrestees, and failures to prevent domestic violence within at-risk families.
Sentinel events can include episodes that are “within policy” but disastrous in terms of community relations … whether or not everyone agrees that the event should be classified as an “error.” Even the lengthy and expensive incarceration of a harmless geriatric prisoner, where the excessive cost consitutes the harm, could be examined as a sentinel event.
In fact, anything that stakeholders can agree should not happen again could be considered a sentinel event.
This monograph, in my opinion, has not received the attention from criminal justice reformers that it should. Errors, malicious acts and resulting injustices in the criminal justice system impact every member of society, though in very unequal ways. The list of harms caused is endless. But in this case, Ahmaud Arbery’s family might never have seen his killers made accountable, were it not for the inadvertent release of the video showing his death.
As a nation we have the ability to identify criminal justice wrongdoing. Clear measures could include the creation of federal, state or local sentinel event teams specifically to identify, investigate and analyze systemic injustices, in order to prevent their reoccurrence.
But our political leaders lack the will to do this. And if the death of Ahmaud Arbery doesn’t shame them into action, what would it take?
*LEAP is the fiscal sponsor of The Influence Foundation, which operates Filter.