Ahmaud Arbery murder case

[RonJohn]

You're misrepresenting what he said. Tresspass and Entering are not the same thing. The house under construction did not have doors or walls, so there is no Entering. What you described is Entering. Different animal. Also, the statute talks about brandishing a gun when there is a conflict, not just when someone sees a gun. Come on. Don't be a troll.

It is a misinterpretation about "having a gun". However, the trespass law in Georgia requires: intentional damage to property of less than $500, notice from the owner not to enter, or a request from the owner to leave. I am not saying that is how it should be, just that the statute is written that way.

 

[ramblinwreckguru]

It is a misinterpretation about "having a gun". However, the trespass law in Georgia requires: intentional damage to property of less than $500, notice from the owner not to enter, or a request from the owner to leave. I am not saying that is how it should be, just that the statute is written that way.

Regarding the gun issue, you've said more than once that a person only has to feel threatened by another person with a gun no matter what the person with the gun says his intentions are. I may not have your exact wording right but that is the gist of it. I don't think that Mcmichael said that he ever intended to shoot Arbery with his gun.

Regarding criminal trespass, if I accidentally leave my door unlocked and come home to find some stranger chilling out on my sofa and if I pull a gun on him because he is in my house without permission, does the stranger have a right to shoot me with his gun in self defense?

 

[RonJohn]

Regarding the gun issue, you've said more than once that a person only has to feel threatened by another person with a gun no matter what the person with the gun says his intentions are. I may not have your exact wording right but that is the gist of it. I don't think that Mcmichael said that he ever intended to shoot Arbery with his gun.

Regarding criminal trespass, if I accidentally leave my door unlocked and come home to find some stranger chilling out on my sofa and if I pull a gun on him because he is in my house without permission, does the stranger have a right to shoot me with his gun in self defense?

The exact wording is: "Commits an act which places another in reasonable apprehension of immediately receiving a violent injury". It does include the word "reasonable". If someone is toting a gun from a truck beside the road into the woods to hunt turkey, that would not cause a "reasonable apprehension" of injury. If someone has been chasing a person and yelling at that person, and then produces a gun that would cause a "reasonable apprehension" of injury. If I am with another person and that person shows me his gun and describes the details of that gun, that would not cause a "reasonable apprehension" of injury. If that person and I are arguing strongly and he then pulls the gun out and holds it in his hands, that would cause a "reasonable apprehension" of injury.

Intention doesn't matter with respect to assault. What do you think McMichael's intention with the gun were? He had been chasing Arbery and trying to detain him. This is pure speculation on my part, but he likely thought that the gun would force Arbery to stop, so he could be detained. Why would the gun force Arbery to stop? It would only cause him to stop if he thought there was a chance of being injured by McMichael.

Many people seem to think that if "they" are in control of a situation, that causing fear in others is OK. Many high school and college kids will play pranks and try to scare someone into thinking they are being mugged or attacked. My thoughts, even at that age, were that if I am attacked, I will respond with as much force as I can deliver. If someone had played such a prank on me, it is highly likely that before I was able to understand that it was a prank, people would have been shot, stabbed, clubbed, or impaled with whatever I could get my hands on. Frankly, even though it would have been a prank on the other party's part, I would have been justified in my actions because they caused me to fear for my safety. (Now that I have a family, if I am with them I would react more calmly trying to minimize injury to my family instead of immediately trying to take away the ability of the other party to injure me.)

If someone is in your house, you arrive at home, and they shoot you, they are going to have a very hard time convincing the police or a jury that they only shot you because you entered the house and pulled a gun on them. Once again I am not an attorney. I would think that there are a lot of other things that would come into play in that situation. If you ask them to leave, they would be committing trespass at that point. If they do ANYTHING other than quietly leave after you ask them to, it would be very easy to argue that you had a "reasonable apprehension" of receiving an injury, at which point you can defend yourself. Your question is much more complicated than "did that person violate the Georgia trespass statute?"

You seem to believe that I am arguing that it is morally and socially acceptable to enter property without the owner's permission. I am not. I don't even open the door and enter my parents' house. I knock on the door and let them open it. I am simply describing the trespass statute. If you don't damage property, enter after receiving notice from the owner, or don't leave after being requested to by the owner, then you haven't committed trespass.

 

[ramblinwreckguru]

If someone is in your house, you arrive at home, and they shoot you, they are going to have a very hard time convincing the police or a jury that they only shot you because you entered the house and pulled a gun on them. Once again I am not an attorney. I would think that there are a lot of other things that would come into play in that situation. If you ask them to leave, they would be committing trespass at that point. If they do ANYTHING other than quietly leave after you ask them to, it would be very easy to argue that you had a "reasonable apprehension" of receiving an injury, at which point you can defend yourself. Your question is much more complicated than "did that person violate the Georgia trespass statute?"

You seem to believe that I am arguing that it is morally and socially acceptable to enter property without the owner's permission. I am not. I don't even open the door and enter my parents' house. I knock on the door and let them open it. I am simply describing the trespass statute. If you don't damage property, enter after receiving notice from the owner, or don't leave after being requested to by the owner, then you haven't committed trespass.

I'll tell you this. If I come home one day and I find a random dude chilling out on the sofa, I won't be politely asking him to leave. I'll have a .38 on him until the police show up, and if he gets up and takes a step forward, he will be shot and waiting for the police to get there.

Now, in this scenario, I never asked the man to leave and I never told him not to come inside my home, and according to you, I will have either falsely imprisoned an innocent man or murdered him in my own home. Come on man. On a common sense level, that would be an insane position.

 

[forensicbuzz]

I'll tell you this. If I come home one day and I find a random dude chilling out on the sofa, I won't be politely asking him to leave. I'll have a .38 on him until the police show up, and if he gets up and takes a step forward, he will be shot and waiting for the police to get there.

Now, in this scenario, I never asked the man to leave and I never told him not to come inside my home, and according to you, I will have either falsely imprisoned an innocent man or murdered him in my own home. Come on man. On a common sense level, that would be an insane position.

Again, if you have a stranger in your house and all you did was leave the door unlocked, that's not tresspassing, that's entering. There's a legal difference. You find a stranger in your house, and that's a plausible threat to your wellbeing. That's Entering. They jimmy the lock, and that's Breaking and Entering. Nothing about this is relevant to the matter at hand.

You're producing a scenario that is irrelevant to this particular matter. Stop muddying the water. Apples to apples is the best analogy.

 

[RonJohn]

I'll tell you this. If I come home one day and I find a random dude chilling out on the sofa, I won't be politely asking him to leave. I'll have a .38 on him until the police show up, and if he gets up and takes a step forward, he will be shot and waiting for the police to get there.

Now, in this scenario, I never asked the man to leave and I never told him not to come inside my home, and according to you, I will have either falsely imprisoned an innocent man or murdered him in my own home. Come on man. On a common sense level, that would be an insane position.

I don't understand why you are upset with me. I didn't write the law. I am not in the state legislature, so I can't do anything about changing the law. If you are that upset that simply entering a house isn't criminal trespass in Georgia, then I suggest you get in touch with your Georgia house member and Georgia state senator and ask them to get the law changed.

I would strongly suggest that you never use a revolver or pistol as an intimidation tool. When I was 21, I first got a concealed weapons license. At that time, I was shooting 500 rounds a week. I gave a lot of thought to scenarios and how I would react to those scenarios. Forget legal liability. If someone was threatening me with a gun, my first priority would be my safety. Having to convince the police that I was acting in self defense is better than being dead. Escaping is better than being dead. Being in jail is better than being dead. If someone were using a gun to intimidate me, I would have waited for an appropriate time to act. At some point, the person with the gun would hear a noise behind them and look in that direction. Or the stress of the situation would get them to rotate their neck, or wipe their eyes, or something. As soon as I saw such a thing, I would have pulled my gun from my holster, probably dropped to one knee, located the front sight with my right eye, lined the front site up on center chest of the person with the gun, rotated the gun such that the back site lined up with the front site, and squeezed the trigger. With all of the shooting that I was doing back then, I could do that very quickly and hit a bowling pin at 60-80 feet every time. If I were to encounter a situation in which I thought a gun might be necessary, I would not produce it until I was absolutely going to pull the trigger. I would always assume that the other person is just as capable as I used to be, and would not want to give them the opportunity to act. Keep them in the dark about your abilities until it is too late.

 

[ramblinwreckguru]

I don't understand why you are upset with me. I didn't write the law. I am not in the state legislature, so I can't do anything about changing the law. If you are that upset that simply entering a house isn't criminal trespass in Georgia, then I suggest you get in touch with your Georgia house member and Georgia state senator and ask them to get the law changed.

I would strongly suggest that you never use a revolver or pistol as an intimidation tool. When I was 21, I first got a concealed weapons license. At that time, I was shooting 500 rounds a week. I gave a lot of thought to scenarios and how I would react to those scenarios. Forget legal liability. If someone was threatening me with a gun, my first priority would be my safety. Having to convince the police that I was acting in self defense is better than being dead. Escaping is better than being dead. Being in jail is better than being dead. If someone were using a gun to intimidate me, I would have waited for an appropriate time to act. At some point, the person with the gun would hear a noise behind them and look in that direction. Or the stress of the situation would get them to rotate their neck, or wipe their eyes, or something. As soon as I saw such a thing, I would have pulled my gun from my holster, probably dropped to one knee, located the front sight with my right eye, lined the front site up on center chest of the person with the gun, rotated the gun such that the back site lined up with the front site, and squeezed the trigger. With all of the shooting that I was doing back then, I could do that very quickly and hit a bowling pin at 60-80 feet every time. If I were to encounter a situation in which I thought a gun might be necessary, I would not produce it until I was absolutely going to pull the trigger. I would always assume that the other person is just as capable as I used to be, and would not want to give them the opportunity to act. Keep them in the dark about your abilities until it is too late.

Dude, I'm not upset with you. I just think you are wrong about entering someone else's home without permission. Maybe the crime isn't criminal trespass, but it's certainly a crime.

 

[LibertyTurns]

Dude, I'm not upset with you. I just think you are wrong about entering someone else's home without permission. Maybe the crime isn't criminal trespass, but it's certainly a crime.

Right and wrong has little bearing in the court of law. They will pick a jury, they jury will be instructed on the law & then it’s a crap shoot if they like or don’t like you, your story, your lawyer, etc.

 

[RonJohn]

Dude, I'm not upset with you. I just think you are wrong about entering someone else's home without permission. Maybe the crime isn't criminal trespass, but it's certainly a crime.

Then find a statute and tell me what he statute is. There might be one, but I haven't seen it. If you point me to a statute that actually does make it illegal, then that will prove to me that it is illegal. Just saying you don't like it, or that it is stupid for it not to be illegal does not make it illegal and doesn't prove to me that it is illegal.

 

[takethepoints]

Then find a statute and tell me what he statute is. There might be one, but I haven't seen it. If you point me to a statute that actually does make it illegal, then that will prove to me that it is illegal. Just saying you don't like it, or that it is stupid for it not to be illegal does not make it illegal and doesn't prove to me that it is illegal.

My son (and my wife, but she's never handled something like this) is an attorney and I asked him. He backs up what you say. Just coming into a house under construction is not a crime unless the owner tells you to get out.

 

[ramblinwreckguru]

My son (and my wife, but she's never handled something like this) is an attorney and I asked him. He backs up what you say. Just coming into a house under construction is not a crime unless the owner - or the workmen - tell you to get out.

What if the house is not under construction and you and your family have lived there for some time? If you and your family come home one day to find a stranger in your home and he had came in through a door that you inadvertently left unlocked, what would you do and would you consider that man to have committed a crime?

 

[takethepoints]

What if the house is not under construction and you and your family have lived there for some time? If you and your family come home one day to find a stranger in your home and he had came in through a door that you inadvertently left unlocked, what would you do and would you consider that man to have committed a crime?

Call the cops and tell whoever it was to get out and that they were coming. But, of course, that isn't what happened in this case, more's the pity.

 

[GT_EE78]

What if the house is not under construction and you and your family have lived there for some time? If you and your family come home one day to find a stranger in your home and he had came in through a door that you inadvertently left unlocked, what would you do and would you consider that man to have committed a crime?

the better question i think would be if you pulled your gun(to protect self and family) and told the stranger he must wait until police arrive, does the stranger(assuming he is in fear) then have some right to attack you and kill you with your own gun?

 

[ramblinwreckguru]

Call the cops and tell whoever it was to get out and that they were coming. But, of course, that isn't what happened in this case, more's the pity.

I don't think any homeowner with any sense would react the way you say in that scenario.

 

[takethepoints]

the better question i think would be if you pulled your gun(to protect self and family) and told the stranger he must wait until police arrive, does the stranger(assuming he is in fear) then have some right to attack you and kill you with your own gun?

That's a good question. I'll ask the son about it when he gets back. My guess is that he does.

You had best be careful if you pull a gun on someone in your house. If you use it, you can be criminally liable. Just finding someone in your house doesn't constitute a sufficient threat to allow the use of deadly force.

 

[BonafideJacket]

That's a good question. I'll ask the son about it when he gets back. My guess is that he does.

You had best be careful if you pull a gun on someone in your house. If you use it, you can be criminally liable. Just finding someone in your house doesn't constitute a sufficient threat to allow the use of deadly force.

Respectfully, I believe you are wrong on this last point. You may open yourself up to the civil charges, but you would not be criminally liable. According to the castle doctrine, so long as that person is not a family member and you had reason to believe they unlawfully and forcibly entered your house, you are justified in the use of deadly force to remove or terminate their presence. There is no requirement of threat from that person. See OCGA 16-3-23(2) - "A person is justified in . . . using force against another when and to the extent that he or she reasonably believes that such. . . force is necessary to terminate such other's unlawful entry into . . . a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if . . . [t]hat force is used against another person who is not a member of the family or household and who . . . has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred" I shorted the statute to apply to this situation but the full language is below:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:

(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;

(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or

(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.
​

Absent extenuating circumstances (landlord, exterminator, electrician, estranged family member, etc.), a Georgia prosecutor will very rarely pursue charges against a homeowner shooting a stranger they found in their own home, even if the homeowner misread the situation or that person's intentions.

 

[RonJohn]

Respectfully, I believe you are wrong on this last point. You may open yourself up to the civil charges, but you would not be criminally liable. According to the castle doctrine, so long as that person is not a family member and you had reason to believe they unlawfully and forcibly entered your house, you are justified in the use of deadly force to remove or terminate their presence. There is no requirement of threat from that person. See OCGA 16-3-23(2) - "A person is justified in . . . using force against another when and to the extent that he or she reasonably believes that such. . . force is necessary to terminate such other's unlawful entry into . . . a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if . . . [t]hat force is used against another person who is not a member of the family or household and who . . . has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred"

......

Absent extenuating circumstances (landlord, exterminator, electrician, estranged family member, etc.), a Georgia prosecutor will very rarely pursue charges against a homeowner shooting a stranger they found in their own home, even if the homeowner misread the situation or that person's intentions.

This entire subject came out of a discussion about the trespassing statute. As I read the trespassing statute, unless a person intentionally causes damage to property, is notified by the owner not to enter the property, or is asked by the owner to leave the property, he hasn't violated the trespassing statute. Other people have pushed back to say that merely entering an unlocked house is illegal. I have asked for those people to let me know what statute would be violated. Instead of looking for statutes, they turned it into some scenario of: You enter your house and there is someone you don't know lounging on your couch, can you pull out your gun and force him to wait until the police arrive.

The entire discussion started with the Arbery case and whether or not the McMichaels witnessed a crime in progress, which would allow them to conduct a citizen's arrest, and whether any such crime was a felony which would allow the Mcmichaels to pursue Arbery if he was fleeing. We are so far down rabbit holes at this point that it has absolutely nothing to do with the Arbery case, even tangentially.

 

[BonafideJacket]

This entire subject came out of a discussion about the trespassing statute. As I read the trespassing statute, unless a person intentionally causes damage to property, is notified by the owner not to enter the property, or is asked by the owner to leave the property, he hasn't violated the trespassing statute. Other people have pushed back to say that merely entering an unlocked house is illegal. I have asked for those people to let me know what statute would be violated. Instead of looking for statutes, they turned it into some scenario of: You enter your house and there is someone you don't know lounging on your couch, can you pull out your gun and force him to wait until the police arrive.

The entire discussion started with the Arbery case and whether or not the McMichaels witnessed a crime in progress, which would allow them to conduct a citizen's arrest, and whether any such crime was a felony which would allow the Mcmichaels to pursue Arbery if he was fleeing. We are so far down rabbit holes at this point that it has absolutely nothing to do with the Arbery case, even tangentially.

You're right, in an attempt to get this back on track, I'll note that there are other situations which qualify as criminal trespassing under the Georgia code that do not require damages or notice from the owner, including

• knowingly and maliciously interfering with the possession or use of another's property without consent. OCGA 61-7-21(a)
• knowingly entering another person's property "for an unlawful purpose." OCGA 61-7-21(b)(1)

The last one is sufficiently vague that nobody really knows what it means. The Georgia Supreme Court has held that an unlawful purpose may be "inferred from conduct before, during, and after the crime."

Also note that willfully ignoring a no trespassing sign is a per se violation, regardless of your actions once you are on the property. Such signs would be considered notice under OCGA 61-7-21(b)(2). I don't know about this situation, but most homes that I've seen under construction have such a sign somewhere.

 

[RonJohn]

You're right, in an attempt to get this back on track, I'll note that there are other situations which qualify as criminal trespassing under the Georgia code that do not require damages or notice from the owner, including

• knowingly and maliciously interfering with the possession or use of another's property without consent. OCGA 61-7-21(a)
• knowingly entering another person's property "for an unlawful purpose." OCGA 61-7-21(b)(1)

The last one is sufficiently vague that nobody really knows what it means. The Georgia Supreme Court has held that an unlawful purpose may be "inferred from conduct before, during, and after the crime."

I am not a lawyer. I believe from previous posts that you are.

This discussion in the thread far back started with discussion of citizen's arrest. As I understand it, a private citizen must witness (in the immediate presence of) a crime before he can make a citizen's arrest. Also, it appears that if the citizen is wrong and no crime has been committed, then he is subject to being charged with false imprisonment. In this discussion people speculated that McMichael witnessed either trespass or a burglary. My understanding is that burglary requires entry to a dwelling with "intent" to commit a crime. I don't think McMichael could have seen Arbery commit a crime inside from his house, nor could he determine that Arbery's intent was to commit a crime. The trespass statute, per the previous discussion, wouldn't apply either. Arbery: didn't damage the property, didn't receive notice not to enter, didn't receive a request to leave, didn't interfere with the owner's use, and McMichael could not have known if he entered "for an unlawful purpose".

In short, I can't see any crime that McMichael had absolute knowledge of that would enable him to conduct a citizen's arrest. He didn't describe any such witnessed crime in his statement to the police at the scene. He and his attorney have probably been discussing this, and there might be some description of something forthcoming. However, based on his statements and all of the evidence that is available, I don't see anything that would have legally authorized him to chase and/or detain Arbery.

 

[BonafideJacket]

In short, I can't see any crime that McMichael had absolute knowledge of that would enable him to conduct a citizen's arrest. He didn't describe any such witnessed crime in his statement to the police at the scene. He and his attorney have probably been discussing this, and there might be some description of something forthcoming. However, based on his statements and all of the evidence that is available, I don't see anything that would have legally authorized him to chase and/or detain Arbery.

As you can probably tell from my past posts, I typically just try to lay out the letter of the law and let the chips fall where they may. But FWIW, I completely agree with you here. Criminal trespassing, even if applicable, is a misdemeanor. As such, McMichael would have to personally witness or have immediate knowledge of the crime. If it were a felony, then he may have a basis to detain Aubrey based on reasonable suspicion but only if Arbery were trying to escape. From what we know, none of that is applicable. The law (whether trespass, citizen's arrest, or stand your ground) is not the problem here, McMichael is.