Pate, Johnson & Church has been representing people charged in serious criminal cases in the State of Georgia for over 25 years. Attorney Page Pate, who is recognized as a legal analyst and a criminal defense lawyer, is often asked by the media to provide opinions and analysis of high-profile cases appearing in the news.
In this case, News4Jax contacted Page to discuss the February 2020 shooting of Ahmaud Arbery, an unarmed African American man, in Brunswick, Georgia.
The Waycross Judicial Circuit District Attorney, George Barnhill, explained in a letter written to the Glynn County Police Department, that due to Georgia’s citizen’s arrest law there was no probable cause to arrest the alleged shooter, Travis McMichael, and his father, Greg McMichael (who is a former Investigator for the Brunswick District Attorney’s Office). Page disagreed with that application of the citizen’s arrest law to this situation and explained that “What’s critical about Georgia’s law (is that) although you are allowed to detain someone as a citizen if you think they committed a crime, you cannot use excessive force…So even if there was a crime committed and he was trying to hold onto Mr. Arbery to wait for police, you cannot then escalate it, as I think happened in this case.”
District Attorney Barnhill also said that he believed the alleged shooter, Travis McMichael, was defending himself when he shot Mr. Arbery. Based on a video released to the public of the incident, Page disagrees and says “I do not think this is a good self-defense case for Mr. McMichael. I mean, No. 1, you see Arbery running down the street, he is not approaching the McMichaels, he is not threatening them, he doesn’t present any sort of threat whatsoever. They are chasing him…And then at the point that when Travis McMichael has the gun and is pointing it at Arbery, it is totally reasonable and justified for Mr. Arbery to try to defend himself. So I don’t think Travis McMichael can say he was acting in self-defense when it appears from the video that he is the aggressor in this situation.”
Page also comments that in the police report of the incident, there is no mention of Greg McMichael saying that he and his son were trying to make a citizen’s arrest of Mr. Arbery. Page says “Citizen’s arrest was not what Mr. McMichael was saying at that time. He was saying that his son acted in self-defense…The district attorney in Waycross as part of his justification not to charge these people or recommend that they be charged came up with this citizen’s arrest defense.”
Greg and Travis McMichael have subsequently been arrested by the Georgia Bureau of Investigation and charged with murder and aggravated assault. They are being held in the Glynn County Jail without bond.
Jen: Does Georgia citizen’s arrest law apply in this case? What about self-defense? Page Pate is a criminal defense attorney in Brunswick who is joining us this morning via Zoom. Mr. Pate, thank you for being here. I do appreciate it. And we also want to point out to our viewers that you’re not affiliated with this case nor are you affiliated with any of the people involved, correct?
Page: That’s correct.
Jen: So would you please explain Georgia citizen’s arrest law?
Page: Sure. Georgia has a citizen’s arrest law, like many states, to generally allow retail establishments to apprehend someone that they think may be shoplifting. That was the reason that the statute was enacted, that’s usually where you see it applied. In a situation like this, the only type of defense somebody could have, if they were in Mr. McMichael’s position, is if they saw someone committing a crime and then they tried to apprehend that person, hold onto them just long enough for the police to show up. But what’s critical about Georgia’s law, although you are allowed to detain someone as a citizen, if you think they’ve committed a crime, you cannot use excessive force. So even if there was a crime committed and he was trying to hold on to Mr. Arbery to wait for the police, you cannot then escalate it, as I think happened in this case.
Jen: So I want to unpack that a little bit because that’s a lot of information and I wanna compare it to the narrative that the McMichael’s then gave, or Greg McMichael gave to law enforcement that day in February. It specifically says that he was in his front yard and saw the suspect from the break-ins hauling…and an expletive is used, down Satilla Drive toward Burford Drive and that’s when he said he ran into his house, called to his son and said, “Travis, the guy is running down the street, let’s go.” Does that suggest to you that he actually saw a crime being committed at that moment which would then perhaps allow his defense to be this citizen’s arrest law?
Page: It really doesn’t. I mean, let’s first assume that there was a crime committed and I think there is a dispute over that. They’re talking about some surveillance video they may have had. There’s only one burglary reported in that area within the month before this happened and it was from Travis McMichael’s truck apparently. But assuming that there was a burglary and assuming they had sufficient evidence to believe that it was Mr. Arbery, all they could have done at that point was simply follow him, get his location, notify the police and then try to detain him if possible. That does not give them the right to use deadly force.
Jen: That said, then why do you suppose, you know, this statute has been raised as a possible defense and excuse as to why these two men have not been charged?
Page: That’s a great question and I think if you look at the police report, it wasn’t the McMichael’s who were raising this as a defense, it was the district attorney in Waycross. Citizen’s arrest was not what Mr. McMichael was saying at the time. He was saying that his son was acting in self-defense. He got out of the truck, he had a shotgun, Mr. Arbery was trying to take it away, he was defending himself. The district attorney in Waycross, as part of his justification not to charge these people, or recommend that they be charged, came up with this citizen’s arrest defense. So, I understand why they’re doing it. If I was Mr. McMichael’s lawyer, it’s the defense I would probably raise, but I think at the end of the day it does not justify the use of deadly force in this case.
Jen: Let’s talk about self-defense here if we could. Looking at this video, as I have many times, and I’m sure you have as well, I’d like to call up specifically as you see Arbery running down the street and this white pickup truck is parked in front. We’re showing right now that you see Arbery was running in the middle of the street and then veers to the right, perhaps to avoid the man standing in front of him holding the shotgun and then does come around and there is a confrontation. Could the argument be made that Arbery was not in fact the aggressor, considering the fact that he had pivoted as if to perhaps get away from the man holding the shotgun?
Page: Oh, absolutely. I don’t think this is a good self-defense case for Mr. McMichael. I mean, number one, you see Arbery running down the street. He is not approaching the McMichael’s, he’s not threatening them, he doesn’t present any sort of threat whatsoever. They are chasing him and then at the point where Travis McMichael has the gun and is pointing is at Arbery, it is totally reasonable and justified for Mr. Arbery to try to defend himself. So, I don’t think that Travis McMichael can say, “I was acting in self-defense” when it appears from the video that he was the aggressor in the situation.
Jen: So let me fast forward here. So, we interviewed Arbery’s mother yesterday and she said that on the day that her son was shot and killed, that a Glynn county police officer knocked on her door and told her that her son had been killed by a homeowner who had confronted her son about a burglary, that they tussled over a handgun and her son was shot and killed. Yet, the narrative from this police report, as you and I just discussed, makes no mention of the fact that either of the McMichael’s were in fact burglarized, nor does, based on the video that we’re seeing, did this confrontation happen on anyone’s property. Given that, how do you, as a criminal defense attorney in Brunswick, wrestle with the fact that it appears there are two different scenarios that are coming from law enforcement?
Page: Yeah, you know, it’s really concerning to the people in this community that the case was at a least, initially, not going to get a proper investigation. I think it’s clear that the Glynn County police department should not have been assigned to investigate this case. The good news is, as of yesterday, the GBI, Georgia Bureau of Investigation has taken over the investigation. And I think that’s given a lot of people in this community some relief and some hope that we’ll get a thorough and independent look into exactly what happened.
Jen: Page Pate is a criminal defense attorney in Brunswick. Thank you for joining us this morning. I do appreciate it and we’ll be right back.
Page: Thank you, Jen.
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.