Three Things Currently Illegal in the State of Georgia
On May first 2021, House Bill 479 passed by Georgia’s General Assembly went into effect, altering the law governing arrests by private persons. While previously, the law had allowed a private person to make an arrest for a crime that had just occurred within that person’s “immediate knowledge,” the new law allowed for arrests only by “any person or his or her agent or employee who owns or operates a retail establishment or a food service establishment or any business owning personal property located on their own property or on the property of others on which they are conducting their business activities” and only for the crimes of theft by shoplifting, refund fraud, unlawful use of retail sales receipts, theft by taking, and theft of services.
All of those are property crimes. So, although the General Assembly has deemed it good practice to allow a bus boy to chase down and fight people who failed to pay for their steak — using whatever force is necessary to complete an arrest — the following are not legal:
Retrieving an Old Lady’s Purse. Though this crime is common enough in movies like Cop and a Half, old ladies are less likely in my experience to be victims of snatching robberies. Still, for the sake of argument, if a local punk had a hankering for Werther’s Originals, grabbed some bat’s day bag, and made a run for it, a bystander might feel obliged to run after the rascal and reverse the robbery.
If they did, they would be breaking the law. A person has a certain leeway in using force to preserve property in their possession, in the possession of an immediate family member, or in the possession of a person whose property they have a legal duty to protect. However, they would have no legal justification for the use of any force or threat of force against a person to retrieve a purse purloined from a perfect stranger.
Holding a Recent Murderer from Escape. Of course, a person could use force to defend themself or someone else against “imminent use of unlawful force,” but as soon as that threat of unlawful force is no longer imminent, any use of force, including restricting the violent criminal’s movement, is no longer legal. If a person watched two people in a gas station parking lot get into an argument, then one of those people took a tire iron to the other’s head, spilling their brains on the pavement, once the killer dropped the tire iron and walked away, it would be illegal for bystanders to hinder that person’s escape.
This can be extended to nearly any violent crime except ongoing acts of random violence. A mass shooter, for example, could be opposed because they would pose a specific ongoing threat, but any perpetrator of family violence, armed robbery, gang violence, or over-blown neighbor disputes enjoys the right to be free from interference from anyone other than certified peace officers from the moment they cease actively trying to commit violent crimes. If two Swedish cyclists found a college student dry humping an unconscious woman behind a dumpster, they could interrupt the act, but it would be a felony under current Georgia law for them to chase him seventy-five feet and hold him down while he laughed until police arrived.
Pointing a Shotgun at a Person Suspected of Previously Loitering at a Construction Site. If a person saw someone running down the street, and a police officer had shown the person a picture of that someone and asked if they knew that someone, it would be a crime for the person to brandish a firearm at that person. Even if that someone might have been messing about in a construction site they had no business messing about in, the person could neither compel that someone to stop, nor could they threaten to kill that someone if they failed to comply.
Georgia code 16–3–24 prohibits the use of deadly force (which includes any use of a firearm) in defense of any property except to prevent or terminate intrusion into an occupied dwelling where the occupant can infer imminent threat to their safety (16–3–23). A person may use some force to prevent a theft or trespass against property in their possession or in the possession of an immediate family member or a “person whose property he has a legal duty to protect,” but not such force as would be likely to cause death or great bodily harm. It is also established case law (according to my 2009 Georgia Law Enforcement Handbook) that use of any force to regain property must be taken immediately :
“It is generally recognized that one may use force to regain possession of property wrongfully taken if done immediately after the taking or while in hot pursuit. […] Georgia cases support this proposition, with the caveat that deadly force may never be used to effect recapture.”
But, of course, there is no property to recapture from an instance of loitering or trespassing, so even such an argument would be wanting.
The Citizen’s Arrest
I did not reference HB 479 in the last example above, because it did not affect the scenario. That example, a brief version of The State of Georgia vs. Travis McMichael, took place before HB 479 came to be. The defendants claimed to be conducting a “citizen’s arrest” as authorized by Georgia code 17–4–60 which was repealed in its entirety by HB 470:
“A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.”
The falseness of the claim, as well as that of the accompanying self-defense claim, was verified by the jury’s guilty verdict and not at all difficult to see by simply reading the statutes (or less simply, the case law). First, the McMichaels did not have immediate knowledge that any crime had occurred (only mere suspicion based on police showing a picture on a previous date of the victim and asking if they had seen him). Second, even if they had known of the victim’s recent actions, those actions still could only have amounted to loitering or trespassing (burglary requires entry with the intent to commit theft or some other felony; such intent could not be established upon reasonable and provable ground), which are misdemeanors and would not support an arrest based on attempt to escape. Third, 17–4–60 does not specifically authorize a person to use force or deadly force to make an arrest. It can be inferred that a person would be allowed no more than “reasonable nondeadly force as may be necessary to apprehend and arrest” which is allowed peace officers in 17–4–20, but who are constrained in that they:
“…may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon […]; reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.”
Since a private person would not be authorized to use force above what is allowed to a peace officer, it can be said with confidence that opening an arrest of a misdemeanant, who was not known to possess a deadly weapon and did not pose any immediate threat to others, by pointing a firearm at them (a use of deadly force) was clearly unlawful. The same action taken by the McMichaels would have been unlawful in the State of Georgia if done by a peace officer who had immediate knowledge of the loitering.
These are the reasons that the Glenn County jury convicted the killers of Ahmad Arbery. It was illegal under the laws then current, despite claims by the defendants.
Over-Reaction and Correction
How then, did 17–4–60 come to be repealed unanimously on the back of a case that would show that it did not even apply to the behavior displayed? To put it another way, if the law prior to HB 479 already held the McMichael’s conduct unlawful, why did the General Assembly pass a law that would make the Stanford Swedes guilty of a felony nearly as severe as Brock Turner’s by capturing him during his escape? Certainly part of the motivation was in the zeitgeist of racial reckoning. Georgia’s “citizen’s arrest” law was referred to wherever desirable as a “Civil War-era law” originally intended to allow people “to round up escaped slaves” and support “the lynching of African Americans.” Such classifications ignored the actual text of the law, the various court decisions limiting “unreasonable force,” and the fact that common law was first codified in Georgia in 1861, making most major criminal codes “Civil War era laws.” Calling Georgia’s law against murder a “Civil War era law used to condemn slaves who fought back against their masters,” would be equally accurate, and equally useless — should the prohibition of murder be repealed because racism predominated when it was first proscribed in writing?
Fortunately, the justice system is robust. The General Assembly and its acts are not the sole hope of the people of Georgia. Individual peace officers, prosecutors, judges, and juries affect the direction of any particular case. Journalists and outside agencies watch from the outside and raise questions where injustice appears (as happened in Brunswick). Citizens taking reasonable actions (that is, making justified citizens’ arrests) against criminal activity will go unarrested, unprosecuted, unconvicted, or vindicated on appeal, even though it will remain illegal according to the codified law of the state. Precedent will shape the law such that it directly contradicts the written law (much the way voluntary oral sex is legal in Georgia, despite it explicitly being a felony). Justice will mainly be served, though occasional outliers will remain.
Still, it would be better if there were a single reference where the actual law could be found. HB 479 will only complicate an average person’s ability to discover what the law actually is, since court precedent is much harder to research than the Official Code, which is published on the internet with a very navigable index. Worse yet, passing HB 479 appeared to be an official endorsement by the General Assembly that the “citizen’s arrest” attempted by the McMichaels was actually legal under the law at the time it occurred — which could have swayed the jury to believe it to be so. Legislators must be wary of entering the role of the judiciary, rewriting the law for an individual case.
That is not to say that everything in HB 479 is bad. It added clarification of what force a person who is not a peace officer can use to make an arrest, which had previously been scattered through other code sections (as cited above). It is simply baffling that the law removes the right of bystanders to intervene immediately in a felony but preserves the right of clerks to arrest for shoplifting. Surely, the General Assembly did not think that over-enthusiastic intervention in shoplifting has never escalated to unlawful violence?
