​​The Racist Old Laws Justifying White-on-Black Killings Are Still Here

·5 min read
AP Photo/Lewis Levine
AP Photo/Lewis Levine

The lawyers for the white men who admit, and were captured on video, killing Ahmaud Arbery, have filed papers declaring their plan to “rely heavily upon Georgia’s… citizen’s arrest statute” as a defense strategy. That is, they will argue during the October murder trial that Greg McMichael, a former police officer, and his son Travis were attempting a perfectly legal citizen’s arrest of Arbery because they decided he was up to no good—a supposition steeped in white presumptions of innate Black criminal guilt.

Essentially, the defense will be resting its case on the idea that it was actually Arbery who was breaking Georgia law by refusing to heed the shouted demands of a trio of white vigilantes in pickup trucks with shotguns.

Thomas R. Cobb, the white enslaver who wrote Georgia’s citizen’s arrest law, would likely see this as an appropriate application of the statute. In 1858, Cobb published An Inquiry into the Law of Negro Slavery in the United States of America, in which he wrote that Black folks, “as an animal, in stature, in muscular energy, in activity, and strength,” not to mention “in mental and moral development” had experienced their “greatest development while in slavery.” Two years later, as Georgia’s slave patrols and police ranks saw their membership head off to the front lines of a fight to keep Black people enslaved, Cobb penned a law to ensure every white person could help keep Black folks enslaved at home.

“Thomas R. Cobb wrote a racist doctrine on how to legally lynch Black folk, essentially,” Rep. Carl Gilliard, who led the successful fight after Arberry’s killing to repeal Georgia’s citizen’s arrest law, told me. “He gets killed in 1862 in battle, and then Georgia comes back in 1863 and adopts the ideology as a citizen arrest law. The law would change very little before Ahmaud Arbery was killed in 2020.”

Ahmaud Arbery’s Killers Are Trying to Put Him on Trial. Will a Judge Let Them?

The concept of citizen’s arrest has its earliest roots in 13th century England, when King Edward I enacted the Statute of Winchester, which encouraged community members to pitch into vigilante mobs, seize the criminal in their midst, and “deliver him to the sheriff.” In the British colonies, that “community watch program” added a racial element. A 1686 colonial law invited white citizens to ask any and all Black folks for papers proving they were not enslaved runaways; four years later, the amended legislation levied a 40 shilling fine against whites who did not stop, arrest and punish “wayward” enslaved people.

Citizen’s arrest laws were given new life around the South during the Civil War as a way of controlling Black folks who might escape and join the Union. But they also expanded far beyond the Confederacy. Today, 49 states have citizen’s arrest statutes, which variously deputize everyday, often-ignorant-of-the-law citizens to make arrests using as much “physical force as is justifiable” (New York) to the far more permissive border of “if the life of the person should be taken” (South Carolina).

Guns and enduring anti-Black racism make these ambiguously worded laws especially dangerous, as do so-called “stand your ground” and “castle doctrine” laws. Since the first Stand Your Ground law passed in Florida in 2005, “the odds of convicting a shooter for killing a non-white victim is half of that compared to cases where the victim is white” in the state’s courts. A July 2020 SPLC report notes that “the number of homicides of Black people deemed justifiable more than doubled in Stand Your Ground states between 2005 and 2011, while remaining unchanged in the rest of the country.” According to the U.S. Commission on Civil Rights, “white-on-black homicides are 250 percent more likely to be found justified than white-on-white homicides in non-stand your ground states”—but that horrifying “disparity increases to 354 percent in stand your ground states.”

On the heels of Ahmaud Arbery’s murder, Rep. Carl Gilliard wrote Georgia’s House Bill 45, the first version of legislation to undo the state’s longstanding citizen’s arrest statute. (It would later be House Bill 479) He describes working with a bipartisan group of lawmakers and organizations, “from Republican Rep. Don Hogan, to the NAACP, to the Mayor Harvey of Brunswick,” on getting support for the bill. The coalition got a last-minute notice that hard-right Governor Brian Kemp would back the legislation, and on May 10, Kemp shouted to press that the bill’s signing made “Georgia the first state in the country to repeal its citizen’s arrest statute.” The reform of the bill still lets store proprietors “detain” shoplifters, and restaurant owners can do the same for people who ditch out without paying.

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Georgia’s Stand Your Ground law remains intact. But Gilliard says state Democrats are working to roll back that legislation as well. In February, lawmakers introduced House Bills 145 and 175, which would repeal Stand Your Ground, but there’s been little movement since. In the meantime, Gilliard has been working with South Carolina Rep. Wendell Gilliard (no relation) and New York state Sen. Michael Gianaris (with whom he penned an op-ed on the topic) to scuttle citizen’s arrest laws in both states.

“It’s time if we’re going to move Georgia forward. The follow up from these bills—repealing no knock and stand your ground—going into the 2022 session, they need to happen. Not only in Georgia, but all over the nation,” Gilliard told me. “I’m a post-civil rights child, but when I saw the hundreds and thousands of young people demonstrating and being, in the words of Fannie Lou Hamer, tired of being tired, it was clear to me that we can’t, on the shoulders of giants, just sit back and play like nothing’s happened. There are voices that are crying out to us.”

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