SCOTT DETROW, HOST:
In Brunswick, Ga., a high-profile murder trial is in its early stages. Travis McMichael, Gregory McMichael and William Bryan are all accused of felony murder in the killing of Ahmaud Arbery. It happened in February 2020. Arbery was jogging through their neighborhood when the men chased him down and shot him. One of the defense lawyers has said that they were simply trying to detain Arbery under Georgia's now-repealed citizen's arrest law and that they only resorted to violence when Arbery fought them and fought over possession of Travis McMichael's gun.
Rashawn Ray is a senior fellow at the Brookings Institution who specializes in criminal justice and race in American public policy. He says that citizen's arrest law will likely take center stage in the trial.
RASHAWN RAY: Part of what the defense is going to try to paint a picture about is that there had been a series of burglaries that fit a person like Ahmaud Arbery's description. They're going to try to show him in the home. And they're going to try to frame him as a person that would be so much of a threat that the McMichaels will want to stop him and question him.
DETROW: Given the national attention focused on Arbery's killing, the trial could put a big spotlight on laws Ray argues are outdated and deeply flawed.
RAY: In theory, citizen's arrest laws are laws that allow an ordinary person to see a criminal act occurring and be able to retain a person, to hold a person down, stop a person until law enforcement arrives. Now, these citizen's arrest laws date back centuries. And they were primarily originated for individuals in areas either where law enforcement was not located or where it might take law enforcement a long time to get there. So it makes sense in theory why these citizen's arrest laws exist. A person sees something going on. They want to protect themselves. They want to protect their community. They want to protect others. And so in some regards, it makes sense why they exist. But, of course, people have pointed out to numerous issues in terms of how they are practically applied.
DETROW: Right. And there's a lot of downside that has played out in real life. And I think it is telling that the first thing you said was in theory, with a pause. So let's stick with that in theory, though, for a moment. In 2021, when law enforcement is so much closer to where most people live, is there any good reason for a law like this to be on the books? Is there a situation you could think of and say, yeah, it could still be applicable here in a good way?
RAY: Well, in theory, sure. It definitely could be. As an example, we know recently in Pennsylvania, a woman was actually sexually assaulted on a train. And there were individuals as bystanders standing around watching this occur. And oftentimes, bystanders are the ones who have the ability to interject themselves into a scene and prevent further harm from someone. We also know that outside of urban centers, even suburban areas, there are still a lot of Americans who live in rural America, where it takes law enforcement several minutes to get to a place. It could make sense, in theory, why a person would hold someone or prevent someone from moving until law enforcement arrives.
DETROW: All right, so let's talk about practicality in real life, though. What are some specific examples of how laws like this have led to more problems than they've solved?
RAY: Citizen's arrest laws actually can oftentimes lead to profiling. And unfortunately, that profiling falls along cultural lines, falls along social class lines and, in particular, falls along racial lines, where individuals are profiled not because they are doing something illegal but because they are perceived to be in the wrong place at the wrong time, or they're perceived to be the wrong type of person in a particular place.
DETROW: Which was, of course, the exact situation that Ahmaud Arbery found himself in.
RAY: That is exactly right. Research that I've conducted over the past decade looked at racial differences in physical activity. And one of the main findings was that Black men are significantly less likely to be physically active in predominantly white spaces because they experience criminalization. That is the perception that Black skin is oftentimes criminal or that a person might end up committing a criminal act.
So in Ahmaud Arbery's case, he's out for a jog. He sees a home that seems to be open. He looks in it. You know what? There, of course, has been video evidence of other individuals looking in those same spaces - white people - that did not cause the same type of threat, the same type of reaction Ahmaud Arbery, as a Black man, did. And we know oftentimes that those citizen's arrest laws come about because of profiling, not only in terms of people jogging but also delivery people, people who are simply trying to enjoy a neighborhood that they recently moved into. So it suggests that this is about being the wrong type of person or perceived to be the wrong type of person, or at least the wrong skin color, in a particular neighborhood.
DETROW: Do you have a general sense of how many states still have a law like this on the books?
RAY: Well, way more than people think - so the thing about citizen's arrest laws is that they not only are just about a person being able to make an arrest, but they also morph into "stand your ground" laws.
DETROW: Yeah.
RAY: Of course, a lot of people know about "stand your ground" laws related to the George Zimmerman trial for killing Trayvon Martin. And similarly, in the McMichaels trial with Ahmaud Arbery, even though in the Zimmerman trial "stand your ground" ended up not being directly used in the court case, it was definitely implied. And the public definitely viewed it in that way. The reason why this is problematic is because it's not simply about a person being able to arrest someone, but a person being able to defend themselves even when that other person has not committed a violent act against them. "Stand your ground" laws is oftentimes about a person perceiving a threat.
DETROW: Yeah.
RAY: And in many regards, they are in dozens of states around the country.
DETROW: If you could, what would your first priority be in addressing these?
RAY: I think it's probably similar to the death penalty right now. It's - we probably just don't need it. And the reason why - again, in theory, it makes sense. But in practice, these laws have so much bias based in them that it's unclear that they're going to be able to be corrected. Similarly, late leading into this trial, jurors are going to be swayed by this narrative. And we know that the racial composition of the jury plays a big role into this process.
So look; the thing is, I think a lot of people definitely want to be able to defend their home. This also gets into the castle doctrine. And maybe there'll also become restrictions about when people are able to apply this. If it's on your property, that's very different from a person using public property. But a lot of people who own homes view their entire neighborhood as part of their property. So we really have to look through that and really revamp people's ability to do that, particularly when these laws are disproportionately applied in what happens to the person who was supposedly defending their home.
DETROW: That's Rashawn Ray, a senior fellow at the Brookings Institution and a professor at the University of Maryland. Thanks so much.
RAY: Thank you for having me.
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