Living in the Age of the Black-Panic Defense

By Jelani Cobb, The New Yorker

10 May 20

he most basic conception of racial profiling holds that it is a form of institutionalized bias practiced by police departments in which the color of a person’s skin is considered a barometer of criminality. This idea is problematic enough on its face, but our experience in the eight years since Trayvon Martin’s death has complicated this issue greatly. Martin was killed by a civilian—a self-appointed neighborhood watchman—who had no legal authority but presumed that the seventeen-year-old Martin was a burglar, confronted him, and killed him in a gated community in Florida. Other cases, such as those of John Crawford, who was shot by police while examining a gun for sale in an Ohio Walmart, and Tamir Rice, a twelve-year-old who was shot by a Cleveland police officer while playing with a toy gun in a park, point to difficulties in neatly dividing the racial biases of the public from those of law enforcement. In both of those instances, police shot innocent black males after responding to a call from a civilian who had imagined them to be dangerous. These nuances are relevant because, once again, we are witness to an addition to a gruesome genre of black death.

On February 23rd, according to his mother, the twenty-five-year-old Ahmaud Arbery left his home, in Brunswick, Georgia, to go running. He entered a nearby subdivision called Satilla Shores. At some point, he came to the attention of two residents, Gregory and Travis McMichael, a father and son who also live in the community. The older McMichael reportedly told his son that he thought Arbery was the man suspected of breaking into nearby homes. The two men grabbed their firearms (a .357 Magnum revolver and a shotgun) and pursued Arbery, whom the father described as “hauling ass” down the street. They chased him in their pickup truck while a neighbor, William Bryan, followed in a separate vehicle, recording the chase on his phone.

The horrific scene that unfolds in the video resembles a suburban game hunt. With the two armed men in the truck already ahead of him, and another car rapidly approaching from behind, Arbery begins weaving as he runs. He swerves off the street, cuts across a lawn, and then angles back into the road in front of the truck, where Travis McMichael is standing. The view is momentarily obscured by the vehicle, and a shot rings out. (It’s not clear which of the McMichaels fired the first shot.) The next time we see Arbery, he is struggling with Travis McMichael and a second shot is fired off camera, then a third is fired as they come back into view. Arbery attempts to flee, but takes only a half-dozen steps before he collapses in the street, his limbs arrayed in terrible, deathly sprawl.

The video, which was released on Tuesday, inspired a cascade of fury. Within twenty-four hours, a search of the term “lynching” on Twitter returned a long, bitter scroll of tweets, most of them with the hashtag #AhmaudArbery. But Alan Tucker, an attorney with ties to the McMichaels, apparently released the video in an attempt to defuse tensions surrounding the case. Tucker told First Coast News, a Jacksonville, Florida, outlet, "I didn’t want my community to be burned to the ground. This is a mixed community and they don’t deserve this.” On Thursday, he released a statement that further confounded his reasoning.

I released the video of the shooting on February 23 in Satilla Shores. There had been very little information provided by the police department or the district attorney’s office, but there was entirely too much speculation, rumor, false narratives, and outright lies surrounding this event. I didn’t release this to “show that they did nothing wrong” as is being circulated. I was raised in this community. I love this community and have spent my career helping people in this community. My sole purpose in releasing the video was absolute transparency because my community was being ripped apart by erroneous accusations and assumptions.

Some of those questionable assumptions, though, came from law-enforcement officials. Two local prosecutors who had had access to the video decided that the McMichaels had not done anything criminally prosecutable. On Friday, Glynn County commissioners announced that Jackie Johnson, the county district attorney, had blocked Glynn County police from arresting the two men. Johnson saw no reason to arrest either McMichael—Gregory McMichael, the father involved in the shooting and a former police officer, had worked as an investigator in Johnson’s office for years. That conflict led to Johnson’s recusal, and the case was sent to George Barnhill, the D.A. in nearby Waycross, Georgia. Barnhill later recused himself as well, saying that his son had at one point been Gregory McMichael’s co-worker. The Atlanta Journal-Constitution reported on Thursday that McMichael and Barnhill’s son worked together on the prosecution of Arbery two years ago on a shoplifting charges.

The elder McMichael told police that Arbery had been captured on surveillance video committing other break-ins. (The police report doesn’t say how McMichael would have known that.) This is significant because, in April, before Barnhill recused himself from the case, he wrote a letter to the Glynn County Police Department stating that the McMichaels had been within their rights to pursue and confront Arbery under a Georgia law that makes citizen’s arrests legal if a person witnessed or has direct knowledge of a crime committed by the suspect. But neither Barnhill nor Johnson had mentioned any surveillance video of Arbery. A local news station reported that there had been only one reported burglary in the Satilla Shores community between January 1st and February 23rd: a car break-in. The handling of the case by the two prosecutors suggests a coverup of a killing by a former police officer that has obvious racial implications.

Neither D.A. appears to have been troubled by the disparity between Gregory McMichael’s account in the police report and what Williams’s video reveals. As First Coast News reported, McMichael told officers at the scene that his son got out of the car with his firearm after Arbery had ignored their attempts to talk to him. But, as the video shows, Travis McMichael was already outside the vehicle when Arbery caught up to it, and Arbery was shot two seconds after that. This sequence wouldn’t square with any reasonable concept of self-defense, even if Arbery had previously been captured on surveillance video committing burglaries

A third district attorney, Tom Durden, asked the Georgia Bureau of Investigation to look into the case but then changed course, filing murder and aggravated-assault charges against both Gregory and Travis McMichael. They were arrested on Thursday night, two and a half months after Arbery’s death. Yet questions about why it took so long to get to this point persist. Barnhill’s argument that the McMichaels were within their rights to attempt a citizen’s arrest begins with the presumption that Arbery had, in fact, committed a crime. Gregory McMichael said that they drew their weapons in case Arbery was armed. Later, as the young man lay dying in the street, the elder McMichael turned him onto his back to see if he had a firearm. He did not, meaning that, in a distinct echo of the Trayvon Martin case, two armed men had stalked an unarmed black man, cut off his means of escape, drew weapons and, when a fight ensued, killed him. Yet, according to Barnhill’s letter, none of this warrants prosecution.

The index of cases like this one seems to point to racial presumptions implicit in how we interpret the concept of self-defense. It is reminiscent of the “gay panic” defense of old, in which violence committed in the name of self-defense was acceptable based on a straight person’s allegedly rational fear that a presumably gay person might assault him. We are living in the age of the black-panic defense.

There was no conviction in the trial of George Zimmerman, who killed Trayvon Martin, and no charges were brought in the deaths of John Crawford and Tamir Rice. But no one can seriously believe that if two armed black men chased down and shot a white man in Glynn County, Georgia, they would walk around freely for more than two months. Whatever Tucker’s motives, his release of the shooting video appears to have accelerated the arrest and charging of the McMichaels with murder and aggravated assault. The efforts to bury the case have failed, but it remains hugely significant that two prosecutors saw the video and thought that the two men should go free. The question is whether a jury of twelve Georgians will agree with them.