Ahmaud Arbery defendants invoke Georgia State Law as a Defense in Federal Court It is my understanding that three defendants face a Federal hate crime involving the shooting death of Ahmaud Arbery. In April 2021, all three men were indicted on federal charges of one count each of interference with rights (a hate crime) and one count each of attempted kidnapping, while the McMichaels were also charged with separate counts of using firearms during a crime of violence. Furthermore: The next day on May 11, the U.S. Department of Justice responded that the Justice Department's Civil Rights Division, the FBI, and the U.S. Attorney for the Southern District of Georgia &quot;have been supporting and will continue fully to support and participate in the state investigation. We are assessing all of the evidence to determine whether federal hate crimes charges are appropriate.&quot;[121][122] In April 2021, all three men were indicted for federal crimes – one count each of interference with rights (a hate crime), one count each of attempted kidnapping, and one count for each McMichael of using a firearm during a crime of violence.2 Waycross Judicial Circuit District Attorney George Barnhill issued an opinion prior to the arrest of the three defendants: On April 1, Arbery's autopsy report was given to Barnhill.[78] On April 2, Barnhill wrote a memorandum to Glynn County police, recommending that no arrests be made.[11][12] Barnhill wrote that the McMichaels were within their rights to chase &quot;a burglary suspect, with solid firsthand probable cause&quot;;[31][78] that &quot;Arbery initiated the fight&quot;; and that Travis McMichael &quot;was allowed to use deadly force to protect himself&quot; when &quot;Arbery grabbed the shotgun&quot;.[78][79] Barnhill cited Georgia's citizen arrest law, dating to the Civil War era, as justifying the killing of Arbery (the Georgia law says that either a crime must be committed within the citizen's &quot;immediate knowledge&quot;, or there must be &quot;reasonable and probable grounds of suspicion&quot; for a felony crime). Barnhill alleged that videos of Arbery entering the home under construction on the day of the shooting showed Arbery &quot;burglarizing a home immediately preceding the chase and confrontation. It is my understanding that defendants will seek to invoke state (Georgia) laws as a defense: The legal defense being argued by the defendants accused of murdering Arbery is that they were only attempting to perform a lawful citizen's arrest IANAL: I would think Federal precedent does not enable (i.e. forbids) citizens (including retired law enforcement) to perform arrests or other law enforcment activities through the use of deadly force (i.e. giving chase with firearms, resulting in a fatality and then claim self-defense). Does a claim of exercising state law, permitting citizens arrest, have any weight? Do defendants have standing to invoke self-defense given the context or did they give this up at some point in time? If so, any clarification is appreciated.
Be careful: from the Wikipedia article, it appears that there is a state criminal trial and there will be a federal criminal trial. In addition, there is a federal civil suit which incorporates some stats law claims. The defense in each trial may be different. Have you read the complaint in the civil case? As an example, count 1 alleges, in paragraph 214, that the defendants' actions were &quot;without legal cause.&quot; An obvious defense is to show that the actions were actually justified under the law. The law under which they would have been justified would be state law. It's still possible that the state law justification isn't sufficient, but that is another point to be argued in court. If they can't prevail in showing that state law did authorize their actions then the act was certainly unlawful under both state and federal law. Do defendants have standing to invoke self-defense given the context or did they give this up at some point in time? Standing is a threshold that plaintiffs must meet. But defendants can certainly argue self defense. Whether they can prevail on that argument depends on the facts of the case as determined by the court, in particular by the &quot;finder of fact,&quot; which is the jury in a jury trial and the judge in a bench trial. The facts that I'm aware of in the public record suggest that the defendants would not prevail on such an argument, but that doesn't deprive them of the right to advance it in court. If someone claims that Arbery was grabbing for the shotgun then the defendants have a right to introduce any evidence of that fact that they may have. It is for the finder of fact to judge the credibility of the evidence.
In the US, only crimes that involve death or crimes against the state can be punished with death, see Kennedy v. Louisiana, 554 U.S. 407 (this was a child rape case and execution was held to be unconstitutional). There is a consideration of "proportionality" whereby execution is not an option for all crimes involving death. The court doesn't include or exclude non-death cases, they explicitly kick the can down the road ("We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State"). Therefore, there is no ruling that bars execution for treason, but there is for rape and burning someone's stack of hundreds. This is a list of 2008 pre-Kennedy non-murder "surviving" state capital offenses (most of the cases listed in the article are for rape, which was ruled unconstitutional): Treason (Arkansas, Calif., Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Washington) Aggravated kidnapping (Co., Idaho, Il., Missouri, Mont.) Drug trafficking (Fl., Missouri) Aircraft hijacking (Ga., Mo.) Placing a bomb near a bus terminal (Mo.) Espionage (New Mexico) Aggravated assault by incarcerated, persistent felons, or murderers (Mont.) However, in Washington the death penalty is now unconstititional. The Missouri penalty for treason has been since reduced to a maximum of life imprisonment. On the other hand, Florida still has a "capital drug trafficking" penalty if you import 300+ kg of cocaine, knowing that "the probable result of such importation would be the death of any person" (death does not have to actually result). Here is a list of federal crimes that allow execution, which includes only large-scale drug trafficking, espionage and treason in the non-death crimes.
There are great jurisdiction by jurisdiction differences in the statutes of limitations that apply to crimes. Some jurisdictions have no statute of limitations for any serious crime (e.g. Canada and if I recall correctly Virginia). Others have statutes of limitations for almost all serious crimes other than murder (e.g. Colorado). Where there is a statute of limitations, the primary issue is that the ability of the prosecution and defense to secure reliable evidence that will allow a jury to enter an accurate verdict. This potential to conduct a fair trial can be compromised by a delay in pressing charges. Alibi witnesses can die or disappear to someplace that they can't be located, the location of the alleged crime can change in ways pertinent to proof, memories of witnesses in general can fade. Records or correspondence that could show intent can be destroyed. This is particularly a burden for an innocent criminal defendant who did not know that he or she needed to prepare a defense and gather evidence to respond to criminal charges. Some states toll statutes of limitations during a period of a victims minority or incapacity when brining charges may not be feasible. Other states have a long statute of limitations in rape cases where there is DNA evidence available that can conclusively tie a defendant to the scene of the crime (lack of consent would still have to be established), but a shorter statute of limitations in other rape cases. Murder and fraud are the most common offenses to lack a statute of limitations, in the first case, because it is considered the most serious crime and because the victim is unable to report the crime, and in the latter case, because fraud, by its nature and by the perpetrator's design, may go undiscovered for very long periods of time. Is there a line of reasoning to decide which classes of crime have a limited window for prosecution? While I've given some examples of the considerations that apply, ultimately, this is a legislative and political decision and not a legal one. You can't determine by reason alone which classes of crimes will have a limited window for prosecution. Different legislative bodies make different decisions on the same issues at different times and in different places.
In the United States, the government has, multiple times, destroyed homes while trying to catch a fugitive. And the homeowner sometimes makes a claim in federal court that this is an unconstitutional taking without compensation in violation of the 5th Amendment. In Lech v. Jackson, the 10th Circuit decided that the police and city were not liable for destroying a house while trying to arrest a criminal who had fled there. The Supreme Court declined to hear the case. But in Baker v. City of McKinney, Texas, less than 3 months ago, a district court declined to dismiss a case in which police destroyed a home to catch a fleeing criminal. Allegedly, in this case the police were given a key to the door, a garage door opener, and the code to the back gate by the homeowner - and instead of using those, they used explosives on the garage door and used a BearCat to knock down the fence and the front door. I'm not sure to what extent those facts, perhaps showing that the scale of the destruction was unnecessary, matter. To the best of my knowledge the case is still ongoing.
This reflects a typical division of labor. Normally, the Department of Justice investigates civil rights violations, which it has a division set up to do, while local authorities handle ordinary homicide charges arising (in this case) under the D.C. Code (as another answer notes, this instance didn't obviously fall under Congressionally enacted federal criminal homicide statutes, although there may be some room for ambiguity in that determination, but see Coleman v. United States, 334 F.2d 558 (1964) (&quot;The [District of Columbia] area by no tenable construction can be said to have been within 'the special maritime and territorial jurisdiction of the United States.'&quot;)). Certainly, the DOJ investigation, itself, did not exonerate the officer of a homicide charge, which remained open to be resolved. An internal Capitol Police inquiry subsequently cleared the law enforcement office of homicide charges: An internal investigation has cleared a U.S. Capitol Police officer of any wrongdoing in the fatal shooting of Ashli Babbitt during the siege of the Capitol on Jan. 6, the law enforcement agency announced Monday. The Justice Department previously said the officer would not face criminal charges in the killing of the 35-year-old California woman, who was shot as she tried to force her way through a set of doors deep inside the Capitol. . . . The probe by the U.S. Capitol Police exonerated the officer for his use of force. The department said in a news release outlining the investigation that the officer’s actions were within department policy, which allows deadly force only when an officer reasonably believes they are protecting themselves or others from serious physical harm. The departmental policy described in the news article above closely tracks D.C. Code § 5-351.01 governing when the use of deadly force by a law enforcement officer is justified, which is an affirmative defense to criminal homicide and battery charges. The D.C. Code also expressly recognizes the authority of the Capitol Police as a law enforcement force in the District. A recent general federal law analysis of use of force considerations is described in a July 10, 2020 report of the Congressional Research Service, in light of pending legislation. Of course, Babbitt's next of kin could bring a wrongful death action under the civil rights laws for money damages seeking to second guess the DOJ determination.
I'd take the city council's advice and realize that you could be charged with a crime. Their job is to know the local laws and put them into place, as well as know how those laws relate to state law. As for state law, the Revised Statutes of Missouri, RSMo Section 574.115 Making a terrorist threat says: 574.115. Making a terrorist threat, first degree — penalty. — 1. A person commits the offense of making a terrorist threat in the first degree if such person, with the purpose of frightening ten or more people or causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation, knowingly: (1) Communicates an express or implied threat to cause an incident or condition involving danger to life; or (2) Communicates a false report of an incident or condition involving danger to life; or (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. 2. The offense of making a terrorist threat in the first degree is a class D felony. 3. No offense is committed under this section by a person acting in good faith with the purpose to prevent harm. A fake gun turret on a porch in the public view that tracks people who walk by could be interpreted as making a terrorist threat because it (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. And, it's probably safe to assume your turret has the "the purpose of frightening ten or more people." The fact that the gun turret is on private property doesn't mean much; it is in view of the public and your intent is for it to be seen by the public and you want to invoke fear in the public members who walk by. And it's not going to be seen by the council as some sort of security; threats are not security. If you did put up such a turret, and the state didn't take action under 574.115, and there is no local law on the books that applies, the council can easy put one in place at their regular council meeting with a simple motion and vote. Since you already asked the council, they may already be considering such a law. And, depending on the county, the council could invoke a law addressing threats to the public that has more severe penalties that the state law, because Missouri is a home rule (Wikipedia) state.
Criminal cases The answer in the case of criminal charges in the federal system and in the vast majority of U.S. states is that you can almost never recover legal fees you incur defending a criminal action. There is such a thing as a lawsuit for malicious prosecution, and there is such as thing as a lawsuit for a civil rights violation caused by bringing baseless charges, but in both circumstances one must demonstrate that the charges were brought without probable cause. But, in most cases of serious criminal charges like this one, either a grand jury probable cause finding, or a preliminary hearing probable cause finding, both made well prior to a trial, will conclusively preclude a malicious prosecution or civil rights lawsuit. (Also, prosecutors have absolute immunity for their discretionary prosecution decisions, and judges have absolute immunity for their judicial decisions, and you can't sue jurors unless they accepted a bribe or something like that.) But, the standard of proof necessary to establish probable cause is much lower than the standard of proof necessary to convict. A very small minority of states allow for reimbursement of fees upon an acquittal, but even then, it is often necessary to prove by a preponderance of the evidence that you were actually innocent, so a dismissal on procedural grounds or an acquittal at a criminal trial where the prosecution must show beyond a reasonable doubt that you are guilty, is not sufficient to show that it is more likely than not that you are innocent. Likewise, you are not entitled to recovery for indirect financial damages caused by criminal charges. As you correctly imply, this is a very harsh rule that can mean that wrongful criminal charges can ruin you. On the other hand, if you are unable to afford an attorney, and a public defender is appointed for you by the state, you do not have to reimburse the state for the public defender's fees if you prevail and are acquitted. A minority of states, however, require that you reimburse the state for the public defender's fees if you are convicted along with other court costs, fines and restitution awards. For what it is worth, only about 1% of criminal charges brought result in an acquittal at trial. Most cases are resolved through a pre-trial plea bargain, a voluntary dismissal by a prosecutor who acknowledges that there is no case against you prior to trial, or a conviction of at least something at trial. About 10% of cases go to trial and about 10% of cases that go to trial result in an acquittal or hung jury (in very round and approximate numbers that vary greatly from jurisdiction to jurisdiction and by type of case). Also, probably at least 10% of acquittals are of people who were factually guilty, because juries get it right something on the order of 90% of the time when cases go to trial. But, the vast majority of acquittals result in a vast injustice to the defendant (although not as great as when a judge uses the factual basis of the events from which you have been acquitted to enhance the sentence against you on other charges which is done from time to time in both the federal and state legal systems in a practice that is unfair but not necessarily sufficient to overrule those sentences on appeal). Civil cases The situation in a civil case is different and too broad to answer in one question. There are some civil cases where a prevailing defendant is entitled to attorneys' fees and costs, while there are others where a prevailing defendant is not. The default rule, called the "American Rule" is that a prevailing attorney is not entitled to attorneys' fees and costs of a defense. But, there are myriad exceptions to that rule that vary by type of case, by the particular details of how a case was prosecuted, and by legal jurisdiction within the United States, that are not easily summarized. For example, in Colorado civil cases, some of the more common grounds for an award of attorneys' fees to a defending party are: (a) a two-sided contractual fee shifting term, (b) dismissal of the case before filing an answer for failure to state a claim when tort claims were asserted, (c) a determination that the suit was groundless, frivolous or vexatious, (d) violation of certain rules relating to disclosure of information to the other party, (e) a statutory fee shifting provision in the case of a claim based upon a statutorily created right which is present in some statutes but not others.
Yes The Prosecutor for the local jurisdiction could formally file charges. No complaint by Rock is legally required, and given the video evidence available, Rock's testimony might not be as essential as a victim's testimony often is. But if Rock were to testify that the fight was staged, and no real assault occurred, the case would probably fall apart. That would not be good for the prosecutor's reputation, and might well be a reason not to proceed without a clear statement from Rock. See also: &quot;Pressing charges&quot; - is it needed to bring a charge?