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    Ahmaud Arbery: Video Maker Charged With Felony Murder

    Ahmaud Arbery: Video Maker Charged With Felony Murder

    Felony murder charge predicated on criminal attempted false imprisonment appears to have been tortuously constructed.
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    Hey folks,

    The man who filmed the attack by Ahmaud Arbery on Travis McMichael, William “Roddy” Bryan, has been charged by the Georgia Bureau of Investigation (GBI) with felony murder predicated on criminal attempted false imprisonment, according to various news reports.

    If that sounds like a mouthful of a charge, that’s because it appears to have been tortuously constructed. Indeed, I cannot find any record in Georgia legal history, searched via LEXIS, of any case involving a charge of attempted false imprisonment, much less a case of felony murder predicated on attempted false imprisonment.

    That said, attempted false imprisonment is found in the legal records of other states, including California, Missouri, Wyoming, and others, so it’s not like it’s an entirely fabricated charge—but I can find no record of it being previously used in Georgia. Also, it’s unclear to me to what extent felony false imprisonment is an appropriate predicate crime for felony murder, again I find no record of this being done in Georgia before, but it is at least discussed in the appellate records of other states.  I’ll come back to this point in a few moments.

    One interpretation of this back-bending, apparent first-in-Georgia-legal-history, effort to charge Bryan with felony murder predicated on attempted false imprisonment is that the authorities have simply chosen to completely bend the knee to the outrage mob orchestrated by Benjamin Crump, Al Sharpton R. Lee Merritt, et al., and their demands to arrest and charge with murder everyone having anything whatever to do with Arbery’s death.

    One might also consider the expansion of these felony murder charges to Bryan on this basis to be a kind of Public Service Announcement to Georgia residents generally, to the effect of:  We don’t care what Georgia citizens arrest statute (§17-4-60) may permit, if you pursue a black suspect and that suspect dies in the course of that pursuit, even if as a result of his own conduct, and no matter what your claimed legal justification or the legal merits, we will charge you with murder and put you at risk of spending the rest of your life in prison, in the worst case, and certainly compel you to expend vast sums of money and reputation in order to avoid conviction, in the best case.

    As always, of course, we seek to base our legal analysis on actual law, so let’s take a look at the relevant laws applicable to this felony murder charge against Bryan.

    First let’s consider Georgia’s false imprisonment law, §16-5-41, which reads in relevant part:

    (a) A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.

    (b) A person convicted of the offense of false imprisonment shall be punished by imprisonment for not less than one nor more than ten years.

    Of course, there was no actual false imprisonment in this case, so Bryan is instead charged with a criminal attempt at false imprisonment.  Georgia’s criminal attempt law, §16-4-1, reads in its entirety:

    A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.

    In terms of the possible sentence for attempted false imprisonment, it is set at no more than one-half of the possible sentence for an actual false imprisonment, which works out to a maximum of 5 years on the attempt charge, per §16-4-6. Penalties for criminal attempt.

    That said, the attempted false imprisonment is being used as the predicate for felony murder, and the penalty for felony murder, per §16-5-1, is punishable by life in prison, life in prison without possibility of parole, or even execution.

    It’s also worth asking what evidentiary basis exists for this charge of attempted false imprisonment, meaning that Bryan intentionally attempted to arrest, confine or detain Ahmaud Arbery without legal justification.

    In the initial police report generated after Arbery’s death (embedded below) Greg McMichaels is said to have told the officer that “[Bryan] attempted to block [Arbery] which was unsuccessful.”  That is, of course, not actually evidence of an intent on Bryan’s part to block Arbery, but merely evidence of McMichaels interpretation of Bryan’s intent.

    In any case, “blocking” would seem to be a different matter than “arresting,” “confining,” or “detaining” someone, particularly in the open area in which Arbery was running.

    Further, it must also be noted that false imprisonment, or more accurately in this case attempted false imprisonment, occurs only when the arrest, confinement, or detention is without legal authority—but that legal authority might well be provided by §17-4-60. Grounds for arrest, which provides in its entirety that:

    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.

    I haven’t time today to thoroughly review the actual evidence available on Bryan’s conduct that would support either the charge of attempted false imprisonment, on the one hand, or the justification of citizens arrest, on the other, but I expect folks in the comments will jump in to link such evidence as exists, which I’ll review over the weekend for further analysis.

    It’s also unclear if the law of attempt is appropriate under the facts of this case.  Attempt is a well-established area of the law, and generally has two elements:  one is an intent to commit an unlawful act, and the other is an overt act in furtherance of that underlying unlawful act.

    An example would be some who breaks a car window in order to steal property inside the vehicle, who gets frightened away before the theft can be consummated.   He had the intent to commit the crime of theft, and the breaking of the car window was an overt act in furtherance of that underlying crime of theft, so we have attempted theft.

    That said, it is normally the case that the overt act be something that is itself unlawful.  I’ve done a quick search for examples of criminal attempts in which the overt act was itself lawful, and I’m difficulty finding any.  If it is required that the overt act necessary for attempt be itself unlawful, Bryan’s following (normally not unlawful) or “blocking” (if true, but also normally not unlawful) of Ahmed would need to have been done for unlawful purpose in order for the attempt charge to stick.

    Finally, it’s also unclear if the doctrine of felony murder is properly applied to an underlying felony of attempted false imprisonment.  Although not stated in the felony murder statute, and I haven’t had time to do a thorough review on this issue of Georgia case law, the doctrine of felony murder typically requires that the underlying felony have a reasonably foreseeable danger to life.  That is, not just any felony will do.

    To illustrate this point, under Georgia §16-9-20. Deposit account fraud the passing of a bad check in excess of $1,500 is a felony.  If that check is passed to a recipient who has a fatal anaphylactic shock reaction the ink used in printing the shock, we technically meet the literal conditions of Georgia’s felony murder statutory language under §16-5-1:  “(c) A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.”

    Such a death would not typically be considered to be a reasonably foreseeable risk of passing a bad check, however, and thus the felony passing of a bad check would not typically be an appropriate underlying crime for a felony murder charge.

    It is, of course, much easier to imagine an attempt at an arrest requiring the use of physical force, and for that physical force to escalate to a deadly force level, and for death to occur as a result—but it’s not at all as clearly foreseeable as a death that occurs in the course of, say, an armed robbery.  This is particular the case if the person seeking to make the arrest is accompanying men he knows to be armed.  It is unclear to me whether Bryan was aware that the McMichaels were armed during his pursuit and filming of Arbery, however.

    In any case, that’s all I have on this matter for the moment, so until next time, remember:

    You carry a gun so you’re hard to kill.

    Know the law so you’re hard to convict!

    Stay safe!


    Attorney Andrew F. Branca
    Law of Self Defense LLC
    Platinum Protection Program

    P.S. Here’s that initial police report immediately following Arbery’s death:


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    James B. Shearer | May 25, 2020 at 1:19 pm

    Regarding using the citizen’s arrest provision as a defense, if you are making a citizen’s arrest aren’t you supposed to say something like “stop, you are under arrest” not “stop, stop, we want to talk to you” as quoted in the police report. The language used would suggest to me that they weren’t trying to make a citizen’s arrest.

    Scrape | May 27, 2020 at 1:30 pm

    It appears the McMichaels had no right to make a citizens arrest because Arbery’s mere reported presence at the construction site was, at most, a misdemeanor under GA’s criminal trespass statute. I If he were immediately known by the McMichaels of having just committed a burglary at the site, then that would be a felony that could possibly justify a citizens arrest (assuming further that he was “fleeing”); but the Michaels certainly did not have any particular reason to think that Arbery had just stolen/vandalized anything at the site. He wasn’t carrying away any stolen items or in possession of any burglary tools, and whoever called them in the first place presumably did not tell them that Arbery had actually stolen/vandalized anything.

    So the McMichaels can’t succeed with any claim that their actions were authorized by the citizens arrest statute. If they can’t get off that way, then their conduct looks to me like assault with a deadly weapon (i.e., chasing Arbery down with weapons constitutes assault). And then the resulting death when Arbery wisely or unwisely tries to get the gun away makes it felony murder.

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