Georgia Lawyer Responds to Officer Tatum Regarding Ahmaud Arbery Accusations

Matt Wetherington is a nationally recognized trial attorney that takes on causes, not cases. He is very purposeful in the cases he accepts and seeks out ways to make the world a better place through the civil justice system. His efforts have led to new laws, regulations, and massive changes for many industries.  He has also obtained record-setting verdicts for his clients in a variety of case types and was inducted into the ALM Verdicts Hall of Fame at the age of thirty.

Brandon Tatum is Wrong on Georgia Law

Several people have sent me the video of Brandon Tatum and his attempts to justify the shooting of Ahmaud Arbery.  I have asked him to debate me live in a public forum and will let you know if he accepts. In the interim, I’ve been blessed with a platform, so I am going to use it to educate and empower.

I am posting this to “debunk” the false information that he is spreading about how Georgia law works and whether private citizens are justified in chasing and shooting unarmed individuals that they believe committed a crime.

I am not a criminal defense lawyer. If you need one, I can refer you to some good ones. I do handle civil cases involving serious crimes.

You can disagree on what the law should be, but these are well established legal principles that have been unchanged for decades.  The opinion of a former police officer from another state does not change this analysis and his reasoning is substantively flawed.

Arbery Did Not Commit Robbery

Tatum begins by showing a seven second video of Arbery entering a construction site and looking around prior to being chased, shot, and killed.  Based on this video, Tatum accuses Arbery of robbery.  To commit a “robbery” one must physically take property from another person or the immediate vicinity of another person through the use of force or intimidation.  O.C.G.A. 16-8-40.  Everyone agrees the property was vacant.  There is no evidence to support a claim of robbery as no one has claimed that he (a) took property from a person or (b) took that property “by force.”  Charges of robbery should not be a part of the public debate.

Arbery Did Not Commit Burglary

Second, Tatum accuses Arbery of burglary.  It is not clear if he is using robbery and burglary interchangeably, but I’ll go through the analysis of both for clarity.  “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 other such structure designed for use as the dwelling of another.” O.C.G.A. 16-7-1.  The statute itself uses the term “dwelling.”  That is legally significant.  Because the house was under construction and not used for residence, it does not count as a dwelling. “‘Dwelling’ for purposes of burglary statute, must be ‘occasionally occupied for residential purposes.’”  Earnest v. State (“Because the evidence clearly showed that the house under construction was no one’s residence or abode, Weeks argues the evidence does not sustain the conviction.”)  As an aside, there is currently a case on appeal to the Georgia Supreme Court that might change this analysis – that case is Showers v. State.  In Showers, the defendant was convicted for burglarizing an unoccupied house that was under construction.  In May of 2020, the Court of Appeals affirmed the conviction and expressly found that a building under construction could qualify under the statute.  However, that case has no bearing on the legal landscape that existed on February 23, 2020, when Marbery was shot.

What Tatum intends to accuse Arbery of is theft by taking.  “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA 16-8-2.

Unlike robbery or burglary, which is always a felony, theft by taking can be a misdemeanor.  This distinction is very important for reasons that will become apparent below.  However, even if Arbery committed robbery or burglary, his shooting would still be unjustified under Georgia’s citizen’s arrest laws.

The McMichaels Were Not Authorized to Chase Arbery

Third, Tatum claims that the McMichaels had “legal authority” to conduct a citizen’s arrest.  He is wrong.  “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.”  OCGA § 17-4-60.   There are two parts to this law.  The ability to arrest someone and the ability to chase a person that flees.  A person can be arrested for a misdemeanor as long as he or she does not attempt to flee.  See Delegal v. State, 1900, 109 Ga. 518, 35 S.E. 105. (“A private person is authorized to make an arrest for a misdemeanor only where the offense is committed in his presence or within his immediate knowledge.”)  But, that nuance is irrelevant for our purposes.

If the alleged offender attempts to flee, there MUST be probable cause that a felony was committed to chase him or her and conduct a citizen’s arrest.  The arresting party MUST get this right and the failure to have legally sufficient probable cause of a felony will lead to criminal and civil liability for any unlawful action taken in furtherance of the arrest.  A mistake or misunderstanding of the underlying criminal act is fatal to the arresting party.  This is why security guards and store employees are trained to NEVER chase a shoplifter.  But, they are trained to ask the person to voluntarily stop and if they do, a citizen’s arrest can occur.

Here, there is no probable cause of a felony, so the chase and attempted detention of Arbery was unlawful.

Now, we get to the attempted “arrest.”  First, it is important to note that timeline reported by Tatum is incorrect.  Prior to the video starting, the McMichaels previously attempted to intercept Arbery.  Arbery ran in the opposite direction away from them.  The McMichaels then cut him off a second time and the video picks up from there.

Tatum begins this section by claiming that the carrying of a firearm to a citizens arrest is lawful.  Here, he is probably correct.  However, once the gun is pointed at Arbery without substantiation, the crime and tort of assault has occurred and the use of that firearm is no longer legal.  “Although a private person may make a citizen’s arrest, only force that is reasonable under the circumstances may be used to restrain the individual arrested.” See Patel v. State, 2005, 279 Ga. 750, 620 S.E.2d 343.

The use of a deadly weapon against an unarmed person is patently “unreasonable.”  The case of Carter v. State is illustrative, where a person conducted a citizen’s arrest with a baseball bat over a belief the victim committed a burglary:

Evidence that murder victim had been charged with aggravated assault for beating individual with baseball bat based on belief that individual had burglarized a home did not warrant jury instruction on citizen’s arrest in murder prosecution in which defendant asserted self-defense; victim’s alleged assault with baseball bat entailed use of unreasonable force, and could not have been part of legitimate citizen’s arrest.

The McMichaels Were Not Authorized to Use Lethal Force for Self Defense

Tatum then talks about self-defense.  I’ve already addressed why self-defense does not apply in previous posts.  To lawfully use deadly force, an individual must reasonably believe “that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.” O.C.G.A. § 16-3-21(a). “A person is not justified in using force if he […] Initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant” or “he was the aggressor.”  O.C.G.A. § 16-3-21(b)(1) and(2).

Even if Arbery instigated the interaction, the shooting was unjustified.  If a party knowingly uses deadly force on an unarmed individual, they are not entitled to a justification defense:

“Yet, the record shows that Milton moved toward Brunson only because Brunson had threatened Milton with a revolver. Both eyewitnesses testified that Milton grabbed the arm of the hand holding the gun and pointed it away from anyone. No witness testified that Milton had a gun, and police found no other weapon, shell casings, or bullet holes at the crime scene. The fact that Milton was a large man is insufficient to support a finding that Brunson had a reasonable belief that he had to shoot Milton to avoid death or great bodily injury to himself. Therefore, we conclude that the trial court did not err in determining that the evidence did not warrant the giving of a self-defense charge.” Brunson v. State.

Conclusion

For the reasons above, I stand by my call for the men to be arrested and charged with murder. The men also deserve a presumption of innocence and fair trial after being charged. That is how the system is supposed to work.

The disconnect and why people are rightfully upset is that the system does now work the right way for so many people who are victims of crime OR charged with a crime. We can do better and Arbery’s murder represents an opportunity for improvement.

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