Ahmaud Arbery: an Excursus into Biblical Case Law
Unless you’ve been exceptionally fortunate (or cut off from the outside world), you’ve heard of Ahmaud Arbery, a man who was shot and killed during an altercation initiated by two men, a father and son, who chased him in their truck and claim that they were attempting a citizen’s arrest because of his apparent resemblance to a suspect in a string of burglary cases (that were apparently never reported). Never mind the obvious question of race and the tensions that it understandably brings (though that is worth discussing). What is interesting to me is the defense made and the arguments surrounding the issue at hand. Some have insisted on splitting hairs, including one Candace Owens, who especially took issue with the claim that Arbery was “just a jogger.” (See her tweet and responses here, with the caveat that you should expect coarse language). Personally, I think the argument over whether Arbery was doing anything illegal himself misses the point at hand. As I see it, there are two questions at play:
Was Arbery doing something, anything, that warranted his death?
Did the McMichaels act properly?
The trouble with answering those questions is multifaceted. Chiefly, I’m not a lawyer and I’m not particularly well-versed in the pertinent laws at a state or federal level. There’s also the obvious fact that I wasn’t physically present for any of the events under consideration, which will invite people to say things like, “Wait for all the facts to come out,” and, of course, “You weren’t there.” I also don’t claim to be an expert in self-defense and so I can only comment on that side of things from what seems to me to be a common-sense level analysis. What I can do, with middling proficiency, is read and interpret the Bible.
While I recognize that it would be difficult at best to make a solid legal argument from the Biblical text in a courtroom, the Bible does, interestingly enough, touch on instances of self-defense related to robbery. With that in mind, let me front-load some qualifications.
I’m not a theonomist, which is to say that I don’t quite believe that the Bible should serve as an overriding foundation for criminal law (though I tend to agree with some of its legal conclusions).
I believe in due process and the Bible endorses it. “Two or three witness,”should be a minimum standard for establishing an allegation as truth. The McMichaels have to be given a presumption of innocence, if for no other reason than to apply the principle consistently.
I recognize that there are some Christians who are pacifists. While I disagree with them, I understand, at least on some level, where they’re coming from. That said, pacifists won’t like some of my conclusions here, and that’s okay.
The Relevant Statute
“When a man steals an ox or a sheep and butchers it or sells it, he must repay five cattle for the ox or four sheep for the sheep. If a thief is caught in the act of breaking in, and he is beaten to death, no one is guilty of bloodshed. But if this happens after sunrise, the householder is guilty of bloodshed. A thief must make full restitution. If he is unable, he is to be sold because of his theft. If what was stolen—whether ox, donkey, or sheep—is actually found alive in his possession, he must repay double.” (Exodus 22:1–4 CSB)
As is the case with any crime, lawyers can write for days on the finer details. (Consider, for example, this examination of the development of burglary). What is of interest for us, dear reader, is a set of principles that we can derive from this passage and apply to the matter at hand. First and most obvious is that the normative penalty for theft is for the thief to pay back what was stolen, with additional payment made to compensate the victim. Prison, beatings, and the like, are off the table, while allowance is made for the thief to be sold (presumably to their victim) to work off the debt.
Second, a note is made, that if, in the process of breaking in, the thief and their presumptive victim fight and the thief is killed, the presumptive victim isn’t “guilty of bloodshed,” with a clearly stated key exception. If the break-in occurs in the daytime, then the presumptive victim is “guilty of bloodshed,” and expected to pay a penalty for killing the thief, that penalty being outlined later in Mosaic law.
It should be noted here that lethal force is allowed in this case, as opposed to being commended or put forward as the ideal. I’m scarcely alone when I say that lethal force for the purpose of self defense isn’t the default and should be the last resort. Many people who teach classes on the use of firearms in self-defense, for example, will also teach on de-escalation and avoidance, even if it’s taught as a part of a class on self-defense. John Farnam, a veritable legend in teaching the defensive use of firearms, has famously emphasized what is sometimes called, “The Rule of Stupid.” He says, “ Don’t go to stupid places; don’t associate with stupid people; don’t do stupid things.” His point is, in part, that you can and should do your due diligence in reducing the likelihood of having to resort to lethal force. I say all of that to emphasize that even while I believe that one can justifiably use even lethal force in the course of self-defense, it must actually be defense and it must actually be justifiable. Keep that in mind.
The exception clause is particularly noteworthy here, because it might strike the reader as puzzling at first. “Why does it matter when a thief breaks in,” one may understandably ask. Consider the following:
Most people are asleep at night, forcing them to respond to a break-in on the back foot.
Visibility is usually lower at night, barring the presence of substantive artificial light.
Fewer people are out and about at night. During the day, neighbors may be able to help you or call the police. At night, it’s presumed that you can usually only count on yourself, other able-bodied persons in your house, and your own ability to contact the police.
Those three factors drastically change the dynamics at play in a break-in. The suspect is harder to identify, as is their motive. Victims may be bolted awake, impairing their judgment and ability to assess a threat and causing them to revert to habits of practice or fear. The people available to help you are fewer and sometimes further away. There is also, of course, the obvious fact of the suspect being in a forbidden place at a forbidden time.
The consensus among scholars both Jewish and Christian seems to be a baseline assumption that a person is acting with a particular malice when they break in at night: the presumed thought process being to take advantage of a person at their most vulnerable. This, along with the confounding factors of fighting at night, excuses the use of lethal force. Douglas Stuart’s NAC volume on Exodus and Nahum Sarna’s JPS Torah Commentary volume especially and helpfully elucidate these points and Sarna also notes the application made by one Rabbi Ishmael, which is that the principle at play is one of certainty. Essentially, Ishmael argues that Exodus 22 only allows for a thief to be killed in the act of breaking in if the victim can be certain that their life is in danger. The notion of certainty matters, as will be unpacked.
Finally, and most simply, a thief can only be killed by the victim if the thief is caught in the act of trying to break in and steal. This should go without saying, but no authorization was given to pursue a thief or other perpetrator and try to detain them or kill them. Further, no authorization existed for finding the person and attacking them to retrieve your property. The window of opportunity for legitimate cases of self defense was limited to the moment of what may be called an imminent threat. A person running away from you isn’t a threat to you. Even a person who attacked you yesterday that you pass on the street isn’t still a threat to you unless they resume an attack on you or your property.
The Principles Derived, Stated in Brief
I recognize that it’s exceedingly unlikely an attorney will open a Bible to Exodus 22 to discuss a case about self-defense. However, I believe that Christians can derive a few key principles to consider in tandem with relevant laws.
Lethal force shouldn’t be the first response and should only be used when you’e certain that a life is at stake.
Don’t seek out or create a reason to use lethal force.
After the threat has passed, seek restitution by the property designated legal means (in other words, call the police if you haven’t already). Don’t pursue your assailant or plan to take revenge later.
Application to the Arbery Case
This probably won’t surprise anyone, but I absolutely believe the McMichaels are legally and morally in the wrong in this case and guilty of some form of unjustified homicide (arguably murder, in my non-expert opinion). If you object to this suggestion and say that Arbery was a thief, fine but, follow me for a moment.
Let’s assume that you’re right. For the sake of the argument, assume that Arbery had stolen from every house in the neighborhood and was planning on doing so again sooner rather than later. Let’s assume that his walking through an unfinished house was fully and truly malicious, rather than an act of misplaced curiosity. Let’s assume that he was wearing whatever it is that you think that ne’er do wells wear. Let’s assume that he was in fact caught on camera stealing and could be easily identified. I’ll grant you each of those premises, if you’ll grant the following:
The McMichaels didn’t initiate their altercation with Arbery in the act of breaking in and stealing. They pursued Arbery in broad daylight and have admitted as much. They started the confrontation with Arbery, regardless of how you interpret the end of the confrontation. The McMichaels, rather than turning over evidence and offering their testimonies to the police, made a cognizant choice to pursue a man they apparently believed to be a potentially dangerous criminal (hence their carrying firearms: you generally only carry a gun if you think there’s a chance, however remote, that you’ll need it). Finally, one can reasonably speculate on whether the McMichaels were in danger during the altercation. What one can be certain about, however, is that they wouldn’t have been in danger if they hadn’t chosen to pursue Arbery.
In other words, the McMichaels broke the Rule of Stupid, as Farnam would say it. I’ll say it this way: the McMichaels violated every sensible principle derived from one of the clearest presentations of self-defense in one of the oldest surviving law codes known to man. The McMichaels pursued a suspect (not even a proven thief, mind you), after he was no longer a threat, initiated a confrontation with him and, rather than de-escalating and avoiding, allowed the situation, passively or actively, to get to the point where, at best, Arbery was hit by a negligent discharge. From the standpoint of best practice in self defense, the McMichaels failed. From a Biblical standpoint, they’re guilty of bloodshed.
Even if Arbery was in fact a thief, he should’ve had a fair trial where multiple lines of evidence were presented. He should’ve had the chance to face his accusers and cross examine them or have a representative do so on his behalf. His accusers should’ve had to present a compelling, affirmative case for his conviction, one of sufficient strength to convince a jury of Arbery’s peers. If acquitted, he should’ve walked away a free man. If convicted, he should’ve been given the opportunity to make sufficient and mutually agreed upon restitution to his victims. Instead, Ahmaud Arbery’s been dead for two months now, and it took a video on Twitter for most of us, myself included, to even know about him.
Unless new information comes to light that radically alters the facts of this case, the answer to both of the questions I asked near the outset of this essay is, “No.” There’s a lot more that could be said, and a lot more I want to say, but after so many words, that’s really the short and long of it. Arbery did not deserve to die and the McMichaels, at best, are abject fools. God have mercy on their souls, and ours.