Hi everybody, I'm here with Nick Dial, a former cop who has been very kind in helping me sort of understand the nuances of the Ahmaud Arbery case.
And thanks a lot for taking the time today, Nick.
Yeah, no problem. So let's go through some of, I guess, the popular misconceptions about this case ranging all the way from, you know, what is a dwelling to what is felony burglary to what are the rights of people who are fleeing?
And I know you've done some research on this as well as your professional experience in the force.
What are sort of the top couple of misperceptions that you're seeing in this case?
I'd say one of the misconceptions is I constantly keep hearing people say, well, nothing was taken or the video shows he didn't steal anything.
Therefore, no crime took place.
That's technically not correct.
By the definition of felony burglary, it has to do with intent.
It's not... So if someone goes on to a premises, doesn't matter if it's occupied or not, with the intention to commit a crime, a felony burglary has taken place.
If you went in there to case it, or you went in there to, let's say, let's say you knew there was a generator in there and you went in there to take a look and you're like, oh, I hear, all right, well, I guess I won't be taking it.
So it doesn't matter if you actually took the item or not.
It comes down to intent.
Of course, intention, a lot of times, that's where it gets argued out in the courts to see if the charges stick.
But a lot of people are focusing on what normally would be hashed out in a courtroom later on.
In parallel with was the citizen's arrest legal or not?
And those are two separate issues, and they use two completely different standards for evidence and charges and so on.
So there's a lot of crossover people are doing that needs to be clarified.
It's really messy right now with all the mudslinging back and forth with social media and weekend legal warriors and so to speak.
Right, so... It's sort of weird that you would imagine that someone would go into case a joint and then maybe they didn't come back or maybe they come back and couldn't steal anything.
In other words, because they failed as a thief, they're not a thief.
And that seems to me kind of odd.
Right. I mean, if somebody comes in to try and rob a bank and fails to rob the bank, like let's say there's some big bag of gold and they haul it halfway down the bank and then they can't get it through the door or something like that and they flee, that doesn't mean they haven't committed a burglary just because they haven't actually managed to physically remove something.
From the building itself.
So yeah, with the intent to commit a crime.
Now, of course, intent is one of these big, challenging questions that you have.
But of course, when you have to make a decision in the moment, right?
This is what people have a tough time going back with.
Because once you know after the fact, oh, nothing was stolen, Ahmaud Arbery was unarmed and so on.
Well, that's all well and good.
That's important information.
But that's not information available in the moment to Gregory McMichael, to the neighbor, to Travis McMichael.
That knowledge is just not available.
And so the difference is between do you have probable cause versus have you convicted someone?
And those two things are very different.
Like the probable cause is, oh, we go get a search warrant so we can go and search someone's place.
And if you find nothing, you don't sit there and say, well, that means that the search warrant was illegal or invalid.
Like, you don't know. So the whole point of getting the search warrant is go and search something.
The whole point of committing a citizen's arrest is because, well, if you think you have reasonable...
Grounds for suspicion that a felony has taken place or a crime has taken place, then the whole point is to stop someone there so that these questions can be asked and answered.
And they could be asked and answered by the cop who shows up.
It could be relatively quick. Or it might be, you know, this is going to have to get some more investigation and maybe there's a charge and maybe there's a negotiation or trial or something like that.
But Intent is not something that you can figure out in the moment.
If there's a legal process going forward, like a trial, that's where you would examine intent, if I understand that correctly.
Right. Well, yeah. And to further add to your example, I mean, there's been cases where people have tried to go down the chimney and they got stuck.
And then they were found out later when people come into work at a bakery or whatever that someone's stuck in the chimney because they were trying to burglarize a place.
So, yeah, successfully carrying out your intention has no relevance whatsoever to whether or not a crime had in fact taken place.
And we kind of know that.
I'm sorry, could I just ask you to tilt your camera down?
You've got a lot of room up top there.
We kind of know that because there is a category in law called attempted, right?
I mean, you don't sit there and say, well, I tried to kill someone.
You know, I shot him with a bow and arrow.
Well, I guess just the arrow part.
But... You know, it kind of went past their head and missed.
So, hey, man, no foul.
Nothing went wrong because they didn't kill the guys.
Like, just because you failed in your criminal intent does not mean that nothing bad happened.
There's attempted murder, there's attempted theft, there's a, I don't know, attempted rape, attempted...
I don't know what the... There's all these categories called attempted, right?
Yeah, well, most states, including Georgia, actually has a statute, since this is a Georgia case specifically, called criminal intent.
So, if there's enough...
Yeah, if there's enough...
Probable cause of suspicion to nail someone that they even have the intent.
Criminal intent is a totally separate statute in of itself.
So there are times when people can get nailed for just criminal intent.
And it's separate from all the other possible charges that would get stacked on.
So yeah, it... There's a lot more going on than just a clear-cut, dry-up, oh, but you didn't take anything, therefore what they did was illegal.
No. It doesn't work like that.
You don't normally see people take stuff.
I mean, I'm not sure what they expect.
Are they expecting for him to come out with a boat over his head or some drywall or with a whole tool belt worth of machinery hacked onto his waist?
A lot of times, of course, people will...
They'll go and look and not take anything because they want to go and see if there's something there they can take at night.
Or they'll take something, they'll hide it.
You can see situations where somebody might go into a house like that because it's a waterfront property.
You can't really see that from the side of the security camp.
It's a waterfront property. So what they'll do is they'll go in and they'll take something and they might hide it.
They might put it under a rock.
They might bury it in the ground.
And therefore, they can come back at night And come and get it, or you could even put it in something waterproof and drop it into the river with a stone attached and then come back another time to go and get it.
So it's not usually the case that you will see someone obviously and clearly, particularly in the middle of the day when there are people around.
Like, you're just not going to see people.
So the fact they say, well, I didn't see him stealing anything, it's like, well, that's because he's, you know, not the worst thief in the world running out with stuff, you know, like some Heisman trophy over his head.
Well, I mean, to add to that point, though, let's take a loss prevention officer at, say, a department store, right?
If they see someone go into the bathroom, which is commonly known to be a place people take merchandise for shoplifting, if they see someone go into the bathroom, They come out of the bathroom and they don't have the merchandise readily visible in their hands.
Would that loss prevention officer have reasonable suspicion to believe that they had stuffed it down their pants and still have it on them?
Yes. Now, does that mean they actually have it?
No. They could have left it in the bathroom.
Maybe they left it in the bathroom and someone else took it.
But before they leave the building, do they have reasonable suspicion to stop them and investigate further if they took the items?
Absolutely. So...
Right, so what you're saying is pretty standard.
Well, or if, you know, the other common thing when I was a kid, I don't know if it still happens, probably does, is that people would, they'd go in with three pairs of pants and they'd walk out wearing two pairs of pants, like the one that they're stealing under the pair of pants.
You know, so if the person comes out and they appear to be slightly more bulky than they were before, or if the woman didn't appear to be pregnant when she came into the store, but then you can't find a turkey and she looks pregnant, heading out of the store.
You know, these are all, you don't have to have absolute proof.
That's the whole point of A reasonable suspicion, a reasonable standard of suspicion.
So let's go through some of the reasonable causes for suspicion that Gregory McMichael might have had when seeing what he saw.
And we don't exactly know, as far as I can tell.
We don't know exactly what he saw.
Right, right. Well, and before we get on that, I just thought I'd share this with your audience.
I mean, here's a Supreme Court case, U.S. v.
Cortez, 1981, where the Supreme Court clarified a bit and they say the process does not deal with hard certainties.
Probable cause was articulated as such.
Practical people formulated certain comments and conclusions about human behavior.
So the court is addressed as many times, but they keep harping on it's not a hard science.
It's not hard certainties.
By definition, it is not absolute.
So there's plenty of case law here for people to reference if they want real good clarification on that, but...
Well, so this is what I've sort of read about.
And there was a Facebook group for the neighborhood.
There was, I can't remember, some other website, Neighbors or something like, some other website where they're posting updates.
And even the security videos had been posted there.
So we're going to assume, at least I think it's reasonable to assume, That Gregory McMichael, probably Travis McMichael, who lived a couple of doors down from the house under construction or under renovation, that they had seen this video, that they had some understanding of the issues that were going on there.
So they knew that, you know, a tall, slender, young black man was going into the unfinished building.
I guess we can call it the English house, right?
So going into the English house on a regular basis, day, night, and so on.
And that stuff had gone missing.
Now, I know that that story has changed, but it hasn't changed as much as people think, right?
So there was this record of like $2,500 worth of fishing tackle that went missing.
And English was saying recently through his lawyer, which, you know, it's kind of a clue as to how open he's feeling about all of this stuff.
And I sympathize with the guy. He's got heart issues and he lives a long way away.
He doesn't want to get dragged into this kind of stuff.
Of course, right? Who would? But he's saying, look, he doesn't have any proof.
That Ahmaud Arbery stole the equipment, stole the fishing equipment.
His boat had been moved. It could have been...
And of course, they don't have video of him.
That's why he put the video in.
As far as I understand, the video cameras were in there because of concerns about theft.
So yeah, he doesn't have proof.
So he can say...
I don't know So the fact is that the people in the neighborhood and Gregory McMichael being the ex-cop,
and we'll talk about this very fascinating text message that just came up recently, but he knew that there was a tall, slender, young black man who'd been seen in this house on multiple occasions, day and night, who had, I assume, I haven't had confirmation of this, that's why I always put it out as a speculation, but he had investigated...
Ahmaud Arbery in 2018, a year before he retired and two years or so before this incident.
So I can't imagine he forgot about the guy completely.
That just to me wouldn't make any sense.
So I assume that he's making some connection there although there hasn't been confirmation of that.
So if you have, like if these theories are correct, like you have a known thief who is going into a building repeatedly for no intent, for no purpose, at night, during the day, where stuff has gone missing, and that's why I get sort of frustrated, like...
As far as reasonable suspicion goes, man, this ain't one of them as far as I can see.
I mean, what do you have to have?
Like a neon sign saying, I stole something to come in across your head to have...
I mean, if you were a cop and when you were a cop, if someone had stopped you and said, yeah, you know, we've seen a guy who looks just like this on video.
He's there day and night. Stuff's gone missing.
He came out. He ran. I mean, what would you say?
I mean, if I was on patrol and they came up and said, hey, we saw this guy go running, or in what context was it?
No, so let's say that you were the first on scene, right?
And let's say that the citizen's arrest had gone the way that the citizen's arrest should go, right?
And they're holding this guy, Ahmaud Arbery, and Ahmaud Arbery is like, I didn't do anything, I didn't do anything wrong.
And these guys are like, yeah, well, he matches the description of a guy who's been caught on video, stuff's gone missing, he ran.
Uh, and, uh, you know, he was, he was resisting, uh, uh, any kind of stop.
He wouldn't stop. Uh, I mean, would you say cut him loose or would you say there's more to investigate here?
At that point, there'd probably, you'd have to launch like a local investigation.
Typically, like in the moment, you'd have to say, I, what evidence do you have?
If they have surveillance footage, they'd want to see that.
Uh, you'd, Do a search of the local area.
Find out, okay, did he drop anything?
Are there any items that can be associated with the residents of the scene?
Get in touch with the owner.
Try to find out if anything is, in fact, missing.
There's a whole slew of things that need to go through.
You just wouldn't be like, oh, well, we'll cut you loose.
You get into the weeds, so to speak, to figure out, okay, what happened?
Is there anything missing? What's going on?
And if there's a backstory to it, you have to dig into that.
But in terms of it, it sounds like a local PD had been informed of this already, and this wasn't necessarily news to them.
So from what's been coming out, it sounds like if they had apprehended him, they would have been like, oh, okay, you finally caught him, so to speak.
If the mainstream narrative that has been pushed forward, that this was just a young man jogging in the neighborhood, And then, you know, the deliverance-style good old boys pulled up at a pickup truck, chased him down, and so on, right?
Now, if you were a cop—and I know this is all theoretical, but, well, you certainly have more experience in this than I do—but if you were a cop and these two guys, Travis and Gregory McMichael, had performed a citizen's arrest, and you said, well, why?
And they said, well, he was running through the neighborhood— Wouldn't it be like, no, no, no, that's, you know, no luck, right?
That's not count. And you've, you know, you've now done something.
I mean, at that point, they would potentially could get judged for false punishment.
No, you can't just grab somebody for running through the neighborhood.
Right. And that, you know, again, if the mainstream narrative was sort of soup to nuts correct, then I would be completely on the side, of course, of whoever would say to these guys, look, you're a bunch of terrible racists or whatever, and you can't just be chasing people down because they're jogging through the neighborhood.
You know, Ahmaud Arbery, of course, has the perfect right to jog wherever he wants and should be welcome in the neighborhood wherever he wants if he's a law-abiding citizen and so on.
But to me, I sort of put myself in a jury position, right?
Like I can't put myself in a law enforcement position.
I can't put myself in a lawyer position because I'm not a law enforcement officer.
I'm not a lawyer or anything like that. But what I do is I kind of put myself in the jury position.
And people who are like, well, you can't have any opinions about this because you're not a lawyer.
It's like, do you know how the jury system works?
Because that's all a bunch of – if you are a lawyer, you can't be on a jury, right?
So, of course, you've got to have opinions about these kinds of things and say, well, you've got to be informed about the law.
It's like, yeah, I know. I know, but, you know, I can read.
And ignorance of the law is not supposed to be any kind of excuse.
So what I do is I say, okay, I was in the jury and they say, okay, was this citizen's arrest valid?
And I say, okay, and I see all the footage that Gregory and probably Travis McMichael had seen.
I see all the footage, read the text messages that went back and forth from, like, I look at all of the...
I think, yeah. So English had alerts whenever the motion detectors on his videos would catch movement in the house.
So you'd see this whole string of things.
You'd see stuff that went missing.
And you'd know that they had knowledge of all of this because a bunch of them had seen the security footage in the Facebook group and the other group that was there for the neighborhood.
And I'd sit there and say, okay, well, if a guy matching the description who's in the house illegally and who runs when confronted where stuff has gone missing...
Yeah. I mean, if you're going to have citizen's arrest on the law, then that's certainly reasonable suspicion to me.
And then people somehow think that that reasonable suspicion translates into a final guilty verdict, and the two are separated by months or years of time and legal machinations.
Right. I mean, this has been clarified in the courts as well.
Reasonable suspicion, probable cause, that has to deal with the situation in the moment.
It is separate from the courtroom.
So, in this particular case, my understanding is the McMichaels were out in the front yard.
The neighbor's out on the phone with 911.
He goes running. They see what's happening.
Of course, they've got the background knowledge, too, with the Facebook group, the surveillance footage.
his own experiences, perhaps, if he knew who it was already, as being Arbery.
You lump all of that in together.
And under Georgia law, is there reasonable suspicion for them at that point to affect a legal citizen's arrest?
Yes.
Now, the question is that people want to get into, well, I don't think they should have done that, or that was a bad way of handling it.
That's conjecture.
It's opinion. That has no relevance whatsoever when it comes to the law.
Is it legal or was it not legal?
Everything else is just background noise.
Well, and it's all well and good to say this after the fact.
And like the after the fact people are so relentlessly boring and midwit to low brain, unhelpful in these kinds of discussions.
I mean... Some people are found not guilty.
Does that mean that the entire arrest process was illegal and invalid and so on?
Well, no. I mean, if you have reasonable grounds for suspicion, then you can execute a citizen's arrest.
And you don't try and legislate on the street.
You don't become what they call a street lawyer, where you start arguing with the cop and arguing with everyone and so on.
It's like, yeah. I mean, if the cop finds it reasonable, you fight it in court.
You don't grab someone's shotgun.
Well, even further to that point, I mean, there's plenty of cases you can look up where the person clearly was guilty and committed a cut because the defense attorney found a loophole, found, well, technically he wasn't Mirandized here, or technically the evidence they found incident to arrest wasn't supported by With sufficient probable cause.
Therefore, all that has to be stricken from the record.
So you have cases where even though someone clearly did commit the crime in their criminal, they get kicked out and it doesn't go anywhere because it didn't follow the legal criteria.
That goes both ways.
That's to protect everybody involved.
So, you know, you win some, you lose some.
But... You know, so people who get really emotionally upset over this type of thing, with no help from me, of course, and then you've got all the speculating.
Whether or not you think it should have happened, or you agree with how something was done...
One thing that people don't – maybe they don't understand is if you're not an attorney or if you're not in law enforcement, you have to separate yourself emotionally from the legal process.
And then you have to look at it and go, okay, what's legal?
What's not legal? Did they break the law?
Did they not break the law? And when you go down it from a real – Straight, hardline point of view.
That's how you separate that out.
And then, of course, you get people that get emotionally upset with the outcome.
But my hope is that if people can at least understand the process a bit more, then some of that emotional reaction can be stemmed back a little bit.
Yeah, that is really tough.
And again, the hindsight issue where it's like, well, it ended really badly, therefore it shouldn't have begun.
It's like... You know, you don't really have that option.
We're trapped by the tunnel of time, whether you like it or not, right?
Yeah, we hear a lot of that argument going on, like, well, you know, I don't think anyone should have died for, you know, stealing something or this and that.
I don't think anyone is saying that.
I haven't heard that argument anywhere.
So it's kind of a... There's a lot of strawmanning going on, which isn't helpful.
There's no reason to be building strawman arguments.
Nobody's saying... Arbery deserved to die for this.
It wasn't like they caught him stealing and then carried out a...
They didn't carry out a judgment and a punishment right there on the spot.
They were trying to apprehend him for law enforcement to come and do what they did.
So where it turned for the worst is when for reasons I can't put together and a lot of people are struggling with, perhaps it has to do with, I don't know if Georgia has three strikes law.
I don't know if he was worried about going back.
You know, for whatever reason, he decided this was the last stand and I'm going to go ahead and try to take this weapon away.
The second you try to take a weapon away from someone who, legally in their possession, has a weapon, you've now turned it into a stand-your-ground self-defense situation, and does anyone really think that he was going to take the shotgun away and be like, alright, we're good, and walk away? I mean, obviously that's speculation, but what do we think was going to happen if he successfully took the weapon?
Nobody in your right mind is going to give up a weapon if somebody forcefully starts to try to take it from you, especially if you think they had just committed a crime.
So that's a whole other can of worms that people are trying to relate that with the first part.
So sorry, let me just interrupt there because this is a really, really key point, right?
So in what...
Is fully acknowledged in the video, in what is fully acknowledged in the eyewitness testimony, in the 911 calls, we know beyond, to me at least, beyond reasonable doubt, that two crimes were committed in the space of like, I don't know, 10 minutes, 15 minutes or whatever, right?
So two crimes were committed.
One, of course, was entering the house illegally and, again, with no intent to steal.
It's a misdemeanor as far as I understand it and all that.
But still, it's against the law, right?
So that was one crime. The second was grabbing someone's shotgun.
And so that's kind of important.
I don't know what the status is, you know, resisting citizen's arrest, fleeing from a citizen's arrest.
I don't know. I mean, it seems like that's not particularly good.
Like, what's the point of giving people the right of citizen's arrest if people could just run away?
It's not a bad thing. And we know that Ahmaud Arbery had run from the cops in the past.
So... We've got two, possibly three crimes committed in space of 10 or 15 minutes, one of which was, you know, you could deal with as murder or attempt to inflict grievous bodily harm in terms of grabbing the shotgun.
So we've got two, if you count the running three, crimes or problems with the law that are occurring in 10 or 15 minutes, but boy, he would never have stolen anything.
You know, like, I mean, come on. I mean, let's try and stay on the sane side of things and not get whipped into too much of a partisan frenzy.
Well, I mean, there's a lot of citizens' arrests that go down perfectly fine that involve weapons.
And the reason for that is the vast majority of people don't see a weapon and immediately say, I'm going to try to take it away.
Most people go, oh, okay, stop.
They're like, all right, everything's good.
And that's where it ends.
This was way different.
But, I mean, what was it?
About four days ago, I believe it was now, in Georgia, there was a...
And I don't know his backstory, but I caught it.
There was a black man in a car and a white guy came in his car, apparently trying to carjack him.
Black guy pulled a gun, held him at gunpoint, said, don't move or I'm shooting you.
We're waiting for the police.
The guy was like, okay, police came, arrested him.
Very similar scenario.
Uh, roles were reversed.
It's not, it's not a big deal, right?
You don't hear anything about it on the news.
All of a sudden people aren't saying, what about this?
And why is he acting like a cop?
No one's saying boo about it because it ended fine.
And, uh, a lot of them pan out that way, but it is interesting that you had a very similar situation as far as, uh, being confronted with a weapon and a scissors of Resco in Georgia.
And, uh, You know, non-issue.
No, and it almost goes without saying, but given how heightened people's tensions and stresses are regarding this, good for the black guy.
You know, I'm glad. I'm glad that he held the white guy at gunpoint and the white guy got arrested because carjacking is a loathsome, horrible activity that can go really, really badly and people can get killed.
I mean, that's exactly how it should have gone.
I'm glad that happened. But interestingly, from what I read is when the white guy got in the car, it wasn't like he pulled a weapon or anything.
Apparently the white guy turned to him and said, you know what this is.
And the black guy at that point was like, okay, like a carjacking?
And that's where he, at that point, I guess you could say, yeah, I have reasonable suspicion that this guy wants to take my car.
And so he stood his ground and good for him.
That's how it should have worked out.
And I have absolutely no sympathy for the guy that got arrested whatsoever.
No, good. Get them off the streets as quickly as possible.
Now, what's the story with fleeing the law and your right of self-defense?
Because that's something I think is kind of unreported on as well.
So, felony flight is a thing, and law enforcement in particular, if...
Now, it's been heavily scrutinized in the last, I guess you could say, 20, 30 years because it used to be anyone committed a felony and they'd take off and then, you know, they'd get shot on the run just for committing a felony and bolting.
And it's been heavily scrutinized and it should be heavily scrutinized because I think that, you know, use of lethal force like that should be reserved for the most dire of circumstances.
But... When I was a deputy, there was a case where there was a guy that went into a home and he had raped an elderly woman and kept her hostage.
It was a really bad situation.
He ran from the house and as he was running, he was going toward another neighborhood.
Now at that point, given the known circumstances, It would have been a justified legal situation if an officer had shot him because it could articulate, based on his past behavior, what he did to the woman.
He's heading toward another neighborhood.
He poses a threat to that neighborhood.
We don't know what's going to happen if he gets there.
Nobody did shoot him.
He did get to the neighborhood, and then he lit multiple homes on fire.
So there's a lot of situations like that where flight can pose a serious risk given the right circumstances.
In this particular case...
Citizens' arrest is kind of a gray area, and I don't know, but Georgia law, it specifically states that someone, if there's reasonable and, see, they don't even use probable cause as a criteria on citizens' arrest in Georgia.
They use the lesser of the two, which is reasonable suspicion.
And it says right in the bottom of the paragraph, reasonable grounds for suspicion.
Of the commission of a felony.
So based on everything we know so far, was there reasonable grounds of suspicion?
Yes. But it also says if they are fleeing, they can be apprehended under citizen's arrest law.
Now, use of lethal force if they're fleeing, I wouldn't go that far.
But here's the thing.
The second... He put his hands on somebody trying to grab the shotgun.
In my opinion, I don't think that has anything to do with fleeing at that point.
That is a hard self-defense scenario because technically he's not unarmed.
He's got his hands on a shotgun.
It comes down to a death struggle between two men.
And someone's going to come out on top.
And, I mean, even more so as far as to the aggression, after his hand was shot the first time it went off, he still fought for it.
So, I mean, this was a pretty intense struggle.
Yeah. But that's the thing people need to separate out, in my opinion, is once it turned into a struggle for a weapon between two people, all of that other stuff becomes kind of a separate issue.
That in of itself is a very serious scenario that...
That has to be debated out, but I would have a hard time seeing how the defense, I guess, on Aubrey's side is going to argue that.
Because he ran a considerable amount of feet to get to where they were As far as I can tell, he wasn't cornered.
He could have gone right, could have gone left, could have went back the other way.
But for some reason, he decided to double around the front of the truck and charge right into him.
And at that point, you know...
Everything they've done that I can ascertain technically was legal.
The citizen's arrest followed the statutes.
Reasonable suspicion, all that was there.
So they had reason to do what they did.
They legally were in possession of a weapon.
Open carry is legal in Georgia.
Stand your ground law is allowed in Georgia.
So under self-defense...
I'm not really sure what the argument is going to be the other way because technically I don't see any laws that were blatantly violated on behalf of the Michaels.
So this is a very nuanced issue.
Now, what about the argument that some people are making, which goes something like this?
Well, so Travis McMichael, from the standpoint of the guy who was filming and from Arbery running towards him, Travis McMichael is standing by the left of the open door.
And at some point, maybe he raised, brandished, they always say, he raised his shotgun and may have pointed his shotgun.
Maybe we can't see it. It was behind the door.
maybe it's around the front of the truck that maybe, just maybe, Arbery saw Travis McMichael brandishing his shotgun and then thought, well, I'm going to get shot, so my only chance for survival is to try and get this gun away from this white guy.
Like, that is a scenario that I've seen.
Now, of course, we can't see what happens on the far side of the truck.
I haven't seen any other footage.
I doubt there would be.
So to me, it's just going to come down to eyewitness testimony.
Of course, Ahmaud Arbery is tragically dead.
And so, but that argument that he's running towards them, Travis could be raising the gun.
And at some point, he's like, man, I got to get the gun away from this crazy white guy.
It's my only chance of survival. A few problems.
So right now we don't have all the facts, and I would assume there's a lot of evidence and facts the public and the media aren't going to be privy to.
It's an ongoing investigation.
For all we know, they're sitting on hard evidence or other facts that are going to be played out in the courtroom.
We don't know.
At this point, here's the problems I see with that scenario.
Okay, if it does come out, let's say they did recover items he had dropped when he was running.
And there is evidence to show he in fact did commit a felony burglary.
If that plays out, then self-defense by Arbery is not justifiable.
You cannot commit a felony and flee and then claim self-defense.
Another problem is if it's deemed you're the aggressor in a situation like that, you can't claim self-defense.
If you are the one that initiated aggressive contact, self-defense is not a defense.
So that would probably be hashed out in the courts because if you look at the video, you could say, well, wait a minute.
He could have gone all these other areas.
He could double back if he was really scared.
Why did he continue toward them?
Why did he double back around and then attack them?
It could be argued he was the one that instigated the aggression at that point in the self-defense.
You mean just by running towards them?
The part where he charges right into them and begins to take the weapon.
Yeah, no, but the argument is that if he's brandishing the weapon or is threatening the weapon against Ahmaud Arbery, then Ahmaud Arbery is going to say, hey, man, I've got to get this weapon away from this guy because he's going to shoot me.
And if I keep running, he's going to shoot me in the back or whatever, right?
Well, I guess before you could make that argument, you would have to prove he did, in fact, point the weapon at him to try to formulate that defense.
But again, that's all speculation, right?
We don't know what he was thinking.
Unfortunately, he's not here to say, I was scared and in fear for my life.
That's why I charged him. So it's going to be like, is there any video that will come out that shows he did, in fact, point the weapon?
Are there any witnesses that will come forward saying that?
As of right now, we don't have any knowledge that took place.
If he did point the weapon...
On the flip side of it, it could be argued that, well, hey, we've seen him in the neighborhood.
I believe McMichaels told the police around the time their 9mm was stolen out of the vehicle, That they had seen someone matching his description.
Supposedly, witnesses in the neighborhood had seen him multiple times there.
So if there was any reason for them to believe he was armed...
And of course, Gregory McMichael dealt with...
I don't know if he dealt with him in the past on the case when he brought a handgun to the high school.
No, I understand...
I don't, it's not really been, they said he investigated him in the past.
I would assume that that was the, I think it was a theft of a television from a big box store in 2018.
But of course, when you investigate someone based upon what happened in 2018, you would also not be, it would not be too hard to kick up the 2013 gun charge where he brought the gun to the basketball game.
He's of course going to see that when he goes through a smile.
Yeah, because he was 19 when that happened, so he would have been an adult, I assume.
Right. So if you did, in fact, know it was Arbery, if you knew about the weapons charge, you had a weapon missing in the neighborhood, in my opinion, there's probably a lot of reasonable argumentation in favor of we had reason to believe he was armed because of those factors.
So if anyone does bring up pointing the weapon at him, That's where they could argue that and say, well, yeah, I pointed the gun at him because he's been armed in the past and he's been aggressive.
So yeah, I did because I was scared of him.
So I don't know. It's going to be interesting to see how it gets hashed out.
And so somebody here is saying, this is Joshua saying, brandishing requires displaying in a manner a reasonable person would apprehend was intended to be threatening versus defensive, right?
And, you know, I think people have to remember just what a strange situation this is to be in for, I assume, for Gregory and Travis McMichael.
It's kind of strange.
Like, you're just saying to a guy, stop, we want to talk.
And he keeps running.
He attempts to dodge.
He comes charging at you and stuff.
You're going to be in high alert at that point.
Because this is like, if someone comes up to me and says, hey, stop, you know what I'm going to do?
I'm going to stop. And I'm going to have a conversation with them.
In the same way that if I keep wanting to go, if I'm a known thief and I keep wanting to go to some place to get a drink of water, I'm going to say, I'm just going to bring some water out.
Right? Because I don't want to be caught in someone's structure if I'm already a known thief and have that history.
And maybe it's three strikes. I don't know.
But I'm going to bring some water.
Or at least I'm going to go knock on the neighbor's door and say, hey, you know, I'm going to go and get some water from this place.
Because that's another theory, right? That he was out there getting some water.
I'm not sure. Where's this water theory coming from?
Oh, yeah. I looked that up.
Let me just sort of give you a quick spin through that one, right?
So slain jogger Ahmaud Arbery may have stomped in-house for drink of water, according to the attorney.
May have. Let's see.
An attorney for Larry English, the owner of the home that was being built, says Aubrey may have been stopping in for a drink of water.
There is a water source at the dock behind the house as well as a source near the front of the structure.
English's lawyer J. Elizabeth Grady said in a statement, although these water sources do not appear within any of the camera's frames, the young man moves to and from their locations.
I'm pretty sure they're not in the garage.
Maybe they are. I don't know. But it just seems kind of odd.
That seems kind of wonky when you consider the fact you have surveillance video in the past where he's been in the structure at nighttime, supposedly.
Hey, you get thirsty at night, man.
Come on. He exits through the front door.
Why wouldn't you go to the front host's spigot?
Why wouldn't you go to a place where someone's home and, like you said, knock on the door and ask...
There's a repeated pattern of behavior that seems to be coming out with the evidence.
So I don't...
Obviously, don't begrudge the defense attorney for coming up with possible scenarios.
That's his job, right? He's there to try to come up with some sort of reasonable defense.
But it seems a bit of...
It's a bit stretching to me to say, well, maybe he was getting a drink of water.
Maybe. Or maybe he is a...
Maybe he's a home renovation connoisseur and wanted to appreciate the fine work that was going on.
Maybe he was bringing copper pipes.
I mean, we could spitball maybes all day until the cows come home.
Or maybe he was casing the place.
I mean, if you want to go that route.
Yeah, I... I don't think that's going to last too long as far as defense.
But hey, that's his prerogative.
That's his right. So we'll see what happens with it.
I was also reading how they say, well, other people have visited that site.
So for instance, there was a group of kids who rode their bike up to the site and had to look in through the garage.
It's like, yeah, I'm pretty sure that nobody's going to chase them down in a truck because there are a bunch of kids coming up to have a look at the garage.
I mean, that's not a big problem.
Well, first of all, here's the problem with that argument.
Will other people do it?
So what's the big deal? That's never an argument.
I mean, if I got pulled over for speeding, you think I'm going to say to the officer, why are you stopping me?
The guy in front of me was doing 10 over 2.
That doesn't pan out.
So that doesn't work.
The other issue is, yeah, they were kids.
I keep seeing people use this term like, oh, when I was a kid, I did this, or kids do that.
He wasn't a kid. He was 25 years old.
I was a police officer at the age of 25.
Child officer. What's that?
Child officer. Yeah, so this whole, like, paralleling what kids do with...
I don't understand that.
A 25-years-old is not a child, so, you know...
But, hey, that's fine, I guess.
Well, they're just trying to find some reason for him to be in there that doesn't look as bad.
Okay, so let's jump into this, and again, we're jumping in.
I'm totally blind. You may be blind to some degree with regards to this, right?
Yeah. So in December, after Larry English alerted Glynn County police to a potential break-in on the site, the local cops told him that Greg McMichael had offered to help keep an eye on the site.
So the officer blah blah blah texted Larry English on December 20th, said Greg is retired law enforcement and also a retired investigator from the DA's office.
He said, please call him day or night when you get action on your camera.
Look, he's not saying you should or you must or I've deputized him.
He's just saying, hey, the guy's offered, right?
Right. If they catch Ahmaud Arbery on site, and Ahmaud Arbery says, hey man, I'm just getting a drink, or I just wanted to stop in and have a look at it, you know, I won't do it again, sorry, sorry, sorry, or whatever, right?
Then he goes and nothing happens.
They kind of got to catch him in the act, which means they got to catch him taking something.
And I think that was sort of the theory.
And so they're keeping an eye on the place, and that's why Greg's kind of keeping things...
I don't know what the movement was, right?
So, I mean, Ahmaud Arbery's in the house.
I assume that the security cameras notice the movement.
I don't know if they're turned off during the day for their motion censoring, if there are people working in there or not.
I don't know. It goes from the cameras to Larry English.
Larry English then tells Gregory McMichael what's going on.
But again, we don't need that particular trail because it was the neighbor who saw Ahmaud Arbery in the house.
But I don't know. I mean, how would you just happen to notice someone going into the house?
Maybe he was out front. Maybe he saw it.
But I got to think that if Ahmaud Arbery was going into the house for ill intent, that he'd notice somebody staring at him and wouldn't go into the house and just say, oh, maybe another time or whatever.
But maybe the text went from the cameras to Larry English, Larry English to the neighbor, and then that's kind of how it kicked in.
So I think that they were chasing him because if he just runs away...
Then he can say, hey, I was just having a look in, you know, come on, it's no big deal.
And the police are like, look, we're not going to hammer this kid for some or this young man for some misdemeanor thing.
So we're just going to let it go.
So I think they really, really were desperate to catch him in the act.
And they didn't want him running and throwing something in a sewer.
And then saying, hey, I didn't, you know, I just got nervous.
I ran, but I wasn't doing anything wrong there.
And I'm not sure that saying that, like when the officer says, you know, he just said, call him if you get action on your camera.
That, to me, is not the same as saying, I give him full authority as a, you know, whatever.
I mean, it's just saying, hey, this guy's offered to help.
Well, right. And, I mean, of course, we don't know the backstory, so maybe the point was, hey, anytime something happens, let him know and send him the information.
So maybe Gregory McMichaels was compiling evidence so they could present to the police department at some time?
Or... Hey, he'll know better what to do.
He lives in your immediate area.
By the time we respond, we may not be able to help you.
So he can ascertain the situation better, collect information, observe and report, whatever it may be.
And then maybe that's all it came down to.
Or maybe they were hoping to catch him enough times in the building to say, look, it can't have been curiosity.
Nothing changed in the building.
The guy keeps coming back.
He's there day and night. Of course he's there casing the joint.
Of course he's there trying to steal stuff.
If there's, I think, reasonable pattern of this.
But it does come down to if Gregory McMichael knew Ahmaud Arbery because of his prior investigation.
I think he did. I mean, I'm pretty sure he did.
Then the question is, okay, well, if he knew who he was, why did he chase him?
Because he knew who he was. He could have just phoned and said, oh, it's this guy, Ahmaud Arbery.
I investigated him two years ago.
Here's his address or whatever.
You go find the guy, right? But I think why they did it was because they needed to catch him with something.
Now, I kind of believe, again, it's all speculation, but I kind of believe that, I mean, we know that Ahmaud Arbery, according to the DA, has got a pretty unsavory family life going on there, right?
He's got a brother, according to the DA. He's got a cousin tangled with the law in prison for felonies and so on.
And so, you know, they probably put him down at the unsavory knee of the unsavory siblings and cousins and said, here, man, here's what you do, blah, blah, blah, blah, blah.
Here's how you case out the joint.
You know, just, I wouldn't know how to do all of this stuff.
Somebody's got to teach you, right? So there's probably some kind of, I don't know, fake and kind of Oliver Twist sort of theft stuff going on in terms of knowledge transfer.
But I think what they said probably was, okay, if you get caught with anything, just like hoof it, man.
Just run like crazy and dump the stuff.
Because if they can't catch anything on you, you can say you were just there.
Maybe it's a trespassing misdemeanor and so on.
But if they can't catch you with anything on you, then it's really not.
That's what makes it the felony, right?
And so my guess is that if he had something on him, he's going to want to sprint and he's going to want to dump it.
And I know there's some stuff on the road there.
Some people have said it's a hammer.
It doesn't really look like that for me.
Maybe it's nothing or whatever. But...
I think if he had something on him, that's why he ran.
And Gregory McMichael probably said, oh, he's running to dump stuff.
Because we knew that he ran in 2013 when he was confronted with a gun at the high school and dumped the gun as he ran.
So he knows. You run and you get rid of the evidence, right?
So that's probably where that tangle kind of kicked in.
And that would explain the running.
It would also explain the chasing.
And it may also explain the attack because, you know, if Ahmaud Arbery is like, you know, they got me, man.
They got me. This is my third time, right?
They got me. And I'm not going down.
Like, I'm going out blazing.
I mean, yeah, it could be.
Those are all possible scenarios.
Obviously, flight complicates the matter.
I mean, a lot of it because you're trying to catch them in the act.
Yeah. It's not uncommon.
For example, I was sitting on a house one time for a warrant that was going to be served.
A lot of it had to do with theft.
Information came through that they potentially were destroying the evidence of getting rid of it.
We couldn't sit on it anymore.
We had to move right in and secure it before the evidence could be destroyed.
And that's pretty common, too.
So even in the police world, if they're just sitting and observing, but they have reason to think the evidence is going to get moved or destroyed and they need to move in, they'll do it.
So was he thinking, oh, hey, he's taking off, he's ditching whatever he took, so I need to move on it now or it's going to be an ongoing problem?
It's possible, although none of that is, as far as I'm aware, none of that is necessary anyway.
I mean, as far as citizens arrest law goes, that's not a prerequisite.
It's just the fact that if they believed he, in fact, did commit a felony burglary and he was fleeing...
Then they're okay to go after him.
I mean, at this point, he's operating as a private citizen, right?
So he shouldn't be held to the same standards as a uniformed police officer either.
So if anyone says, oh, well, there's not enough probable cause, da-da-da-da-da, he's not a uniformed police officer at this point.
He is a private citizen.
I've seen some people, now the media is trying to bring up a lot of his background as far as, oh, well, some of his certifications lapsed, and there's a problem because of this and that.
Now, if you're talking about a case that happened while he was serving as a uniform officer or representing the state or the department, sure.
And maybe if he did any cases while he technically wasn't certified, those need to be looked at.
And maybe some of those aren't going to stick as a result of a certification lapsing.
But when it comes to this particular case...
That has nothing to do with anything.
It's irrelevant. He was acting as a private citizen.
So people are like, oh, but it's certifications or this.
Irrelevant. It doesn't matter.
Right. Now, so I did just look up here the three strikes question, right?
So this is as of July 5th, 2017 and all that, but this is for educational purposes only.
It's not legal advice, but this is what this Georgia criminal defense lawyer's The website says, prior felony, if you have a felony conviction anywhere in the United States and if you are then convicted of a felony in Georgia, you must receive the maximum sentence provided by law.
For example, if your new offense is felony theft, the bad news is that the judge must sentence you to the maximum of 10 years in prison.
The good news is that all or a portion of the sentence can be probated.
You know, I don't know that the probated aspect of things would have worked very well because he got, I think, five years probation for the gun charge in 2013.
This is Ahmaud Arbery, of course.
He got the five years probation.
He violated the probation from what I've read.
And so I'm not sure you get a whole bunch of things probated.
So if he knew this, and again, if he's coming from a sort of social environment with a fair amount of criminality, you know, there's a lot of education in this kind of stuff.
So maybe he's staring, in a sense, down the barrel of 10 years in jail for this, right?
If he's going to be convicted of felony crimes.
Burglary, and he's already had two felonies in the past, right?
That being the shoplifting, I think that was a felony, and the gun charge and so on.
So maybe that's, you know, if he's looking at 10 years, that's a big problem.
There's another one here. Sorry, go ahead.
It wouldn't be the first time somebody's fought with lethal force to avoid going back.
I mean, that happens to police officers all the time because they have a run-in and they know that, hey, this time I'm going to get the book thrown at me and I'm going to go away for a long time.
So they decide to fight.
I mean, it happens all the time.
Yeah, no, that's the problem with the three strikes law is, of course, it just makes a last desperate stand that much more likely on round three.
So that's sort of an issue that I've had.
All right, let's jump over to the we've got this as a sort of donor call at the moment.
Let's have a look.
And again, this is all just our opinion and so on.
So one guy says your earlier example of the carjacking victim, like the black guy pulled the gun on the white guy.
If the white guy had tried to leave or to flee, what options would the carjack victim have?
I wouldn't recommend it.
I would say no, because he's not a police officer.
Even an officer, technically, they may be able to if it fell under felony flight, if what he did was a felony, but I don't even think a police officer would.
It's way too sticky and controversial.
You'd want to avoid that.
Even if you could, which I don't even think a citizen could, maybe an officer in a certain scenario, but most wouldn't even do that.
They wouldn't even go down that road.
Right. So if you pulled a weapon that someone was trying to carjack you and they went to run, let them run.
But there's a lot of people, if you got a gun in your face and they're saying, don't you move, you're getting shot, they're not going to move.
And this guy didn't.
But the answer's question, I would say no.
So here somebody says, the fleeing felon rule is unlikely to have gone his way.
Shooting a fleeing felon means that there's no way to identify the felon.
He is likely to escape and the crime was heinous.
So I guess that is in your situation.
I think this is relative to the carjack victim, not to...
Like, I mean, if Gregory McMichael had shot Ahmaud Arbery when Ahmaud Arbery was fleeing...
I would be like, that's terrible.
Like, I mean, the guy, maybe he stole some stuff.
You don't shoot someone down for stealing some stuff, right?
So that's not the case, though.
People, I mean, he did not die for stealing.
He died for grabbing the gun and the gun going off.
Like my example earlier, when I was a deputy about the guy that ran toward the neighborhood and then lit homes on fire and he had raped a woman, this and that.
That's a justified example of using lethal force to stop felony flight because this is a bad guy.
He's done bad things.
He poses a threat to the community if he gets out.
But yeah, a felony like going in and taking some stuff and then running...
No, almost anyone who's trained, I mean, no one's going to go down that road to shoot and use lethal force in that scenario.
And I don't think anyone would be able to successfully argue that that was justified.
As I said, even if they did manage to pull it off legally, that's years out of your life, it's a stain on your record, it's like you're facing giant risks.
That kind of stuff happened a lot in the 50s, you know?
Like, you ran from the cops, they just shot you.
But there's been a lot of cleaning up of that kind of stuff since then, so...
Well, it used to be any time you ran, you got beat.
Like, just don't run, man.
So here, this guy says, according to Section 16721, criminal trespass, the person only commits trespassing if he remains in the property after being told...
Not to do so. Since Arbery fled, is it technically he didn't commit trespassing and McMichaels weren't justified to do citizen arrest?
And Joshua replied here, felony burglary is the offense here, trespassing with the intent to burgle, not just trespassing.
Now, again, also, from what I've read, I think this is in the mail, there was a sign that said no trespassing.
Yeah, I read that he had no trespassing signs up, so that would suffice a sufficient warning.
My personal opinion is I think it's a bit silly that you need to be warned that it's not okay to go in someone's house.
But those are kind of two separate issues.
So yeah, if there's a sign-up, he definitely committed misdemeanor trespass.
However, as we spoke about earlier about felony burglary, that's going to come down to intent.
Now, I mean...
And an attorney arguing, I would think a prosecutor, if Arbery was sitting in the courtroom and there was a prosecutor fighting about getting charges sticking, they would bring up the surveillance video of what appears to be Arbery in there multiple times.
They would bring up the fact that things had gone missing, even though English seems to be changing his story now.
Things had gone missing.
Apparently, it was known in the area that things had gone missing.
So you've got repeated behavior, things going missing.
So he's seen again in the same property over and over and over.
At that point, they would formulate an argument that, hey, things have gone missing.
He's been in here multiple times.
Now he gets caught again. We would argue that, yeah, he definitely had the intention of doing it again because it shows a pattern of behavior.
And not just sort of idle curiosity and thirst.
Yeah, I mean, not just...
Well, yeah, I took some stuff before, but this time I was just kind of curious how it was coming along.
I wanted to see if the drywall was hanging.
Yeah, yeah. So this is interesting.
About the stolen gun, this listener asks...
Is McMichael liable for not locking it up?
In my state, he would be in trouble.
I'm not sure if that's a common statute in other states.
I don't know. I mean, I guess that's a pretty detailed question.
You can look that up, I suppose, but I don't know.
I have no idea on Georgia law on that one.
I mean, I'm pretty sure it's a wise thing to report a gun that's stolen because if it gets used in a crime, you want to have reported it stolen.
So that's probably, to me, that's why the police didn't have really record of other thefts, but rather they had the record of the theft of the gun because, right...
Well, yeah. And the media has been trying to say, oh, the police debunked the claim that there's been thefts in the neighborhood because there's only been one reported theft.
And that doesn't mean anything.
It's very common for people not to report thefts.
So that really isn't relevant as far as whether or not there in fact have been thefts in the area.
Here's a funny story.
I mean, this is one of the things, this is long before I sort of became this minor public personality, but a friend of mine, he worked for me in a software company, and his brother...
Came into some money and bought a nice spanking new Porsche and had one of these GPS anti-theft devices on it.
And the Porsche got stolen and he called the police and he said, hey, man, I got it right here on my cell phone.
We know exactly where the car is.
And they're like, hey, you know, we'll handle it from an insurance standpoint, but we don't want to go to some potentially dangerous chop shop just for your stupid car.
I mean, I'm paraphrasing a little, but it was something like that.
Sure. I'm surprised because I know a lot of agencies would kind of be chomping at the bit.
Like, oh, you know where? Yes, we're going to go get it.
Yeah, no, that would have been nice.
So somebody, Alex, says here, I've heard there are insurances for the case you kill someone in justified self-defense, such as family members the criminal can go after you to sue.
Is this a thing one should have? I'm not really sure what the question is there.
I've heard there are insurances for the case you kill someone in justified self-defense.
I think this may be related to Joshua saying Larry English may be trying to avoid getting sued because he talked to the McMichaels.
Yeah. So, I mean, there's a lot of high-priced legal advice floating around this kind of thing and a certain thirst for vengeance.
And I don't envy Larry English's position at all.
I mean, the guy just had a house and was trying to keep it properly safe.
I don't understand why he's being singled out by people.
I mean, what... Look, the guy was a victim of theft, and he puts cameras up, and then this goes down, and he doesn't even live in the immediate area.
Anyone who's targeting this poor guy, or making him into a villain, or anything in between, those people have problems.
I mean, that's just, there's no logic there.
That is totally illogical behavior.
I mean, I don't know how else to put it, but...
Joshua says, everyone that gets shot has a family that will try to sue.
Yeah. It is a, I don't know, it's a complicated and messy legal system, to put it mildly.
All right. Well, listen, I really, really appreciate everyone's questions.
Nick, did you want to have any last thoughts about this?
No, I mean, I think we covered it pretty well.
I guess the only thing I'd say on it is, on a side note, that We as a community need to figure out how to start holding the media accountable and not let the media get us riled in a tizzy because it checks off their boxes of what they want to push.
That is dangerous.
It is dangerous behavior. When this first happened, I saw multiple headlines as well as an NAACP posting that said, two white supremacists hunted down a black jogger and killed him.
And there was no evidence for that.
So this inflammatory, off-the-cuff statements of I think?
So can we please, please wait for the facts to come out and look at this stuff with level heads and stop the finger pointing and stop the racial divide and everything?
This is stuff that should be unifying people, whether it's racially motivated, whether it's race-based or not.
It should unify all races.
Look, everyone, no matter what color you are, should all agree that criminals aren't a good thing.
And we should all stand together.
And if someone commits a crime, we should stand against the criminals.
But this constant...
narrative where they run with it.
It constantly creates a divide and then all of a sudden it's like mission creep.
All of a sudden it's not about what happened.
It's not about the facts. It's not about the crimes.
It's just about White guy versus black guy or this or that.
And so I don't know. So I just thought, I'd throw that out there.
It just, it needs to calm down.
It's dangerous rhetoric.
And it just, and it's not going to happen with the media.
It needs to happen with us, the community, to push back and say, hey, you want to run with that?
That's fine. We're going to wait for the facts.
Well, and stop giving the money, like in any way, ship or form.
You've got to starve the beast that's trying to tear us all apart.
All right. Well, Nick, I really, really do appreciate your time, and I'll forward any more questions that I get from you.
Thanks. We just gave our first subscriber-only livestream, which was really cool, and it was great to chat with you guys.
And, yeah, stay in touch.
It's really, really helpful to get this kind of perspective, and thanks for your time today.
All right. See you. Well, thank you so much for enjoying this latest Free Domain show on philosophy.
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