White men accused of killing Ahmaud Arbery won’t face Georgia hate crime charges. Here’s why.

Two white men accused of fatally shooting Ahmaud Arbery in what his family called a modern-day lynching will not face hate crime charges in Georgia, according to state investigators.

Georgia is one of four states in the USA that don’t have a hate crime prevention law, according to the Department of Justice. If someone commits a crime motivated by bias, statewide authorities are unable to pursue additional charges or enhanced penalties for the perpetrator.

“There’s no hate crime in Georgia,” Georgia Bureau of Investigation Director Vic Reynolds said in a news conference Friday when asked whether the men would face those charges.

Retired police officer Gregory McMichael, 64, and his son Travis, 34, were arrested by Glynn County police and charged with murder and aggravated assault Thursday night. The arrest came 36 hours after the Bureau of Investigation began assisting in the probe, which began more than 10 weeks ago.

Reynolds said video of the incident that spread widely on social media was a key piece of evidence.

“We are going to go wherever the evidence takes us,” Reynolds said. “In a perfect world, we would have preferred to have been asked to become involved in February, of course.”

He said the department will investigate William Bryan, who filmed the incident, to determine whether he should be arrested, too. Bryan was not aware he was under investigation until Friday morning when the GBI made the announcement, said attorney Kevin Gough, who represents Bryan. Gough said his client was a witness to a crime and has cooperated with police.

Arbery, who was black, was killed Feb. 23 on a residential street about 2 miles from his home outside Brunswick, Georgia. Gregory McMichael told police he and his son saw Arbery running and believed he was a burglary suspect, so they armed themselves, got in a truck and followed him. They told police Arbery attacked them after one of the men got out of the truck with a shotgun.

Bryan, who joined the father and son in “hot pursuit” of Arbery, recorded the killing on video, according to an internal memo from the district attorney obtained by USA TODAY.

Arbery’s family and their attorneys said that Arbery was out for a jog when he was killed and that he was the victim of racial profiling.

Surveillance video recorded minutes before the slaying proves Arbery was not involved in a crime, attorneys for his family said. An individual believed to be Arbery was seen at a property under construction for less than three minutes before being ambushed a short while later, lawyers said in a statement Saturday night.

The surveillance video was “consistent with the evidence already known to us” that Arbery made a brief stop at the site while out for a run and “engaged in no illegal activity,” they said.

“Ahmaud did not take anything from the construction site. He did not cause any damage to the property,” the attorneys said. “He remained for a brief period of time and was not instructed by anyone to leave, but rather left on his own accord to continue his jog. Ahmaud’s actions at this empty home under construction were in no way a felony under Georgia law.”

Georgia’s lack of hate crime law

A bill that would have penalized crimes committed out of bias against race, colour, religion or sexual orientation passed the Georgia House last year, but the bill failed in the state Senate.

The Georgia Legislative Black Caucus issued a statement Thursday encouraging the Senate to take up the bill when it reconvenes in June.

“In 2020, our state and our country have yet to reconcile with the vestiges of racism. At a time when we are uniting to fight against a global pandemic, another disease rears its head to again take an innocent life,” the caucus said.

Georgia passed a hate crime bill in 2000, but it did not list specific protected groups, and the state Supreme Court threw it out because it was “unconstitutionally vague.”

Arkansas, South Carolina and Wyoming also do not have hate crime laws, along with American Samoa, Guam, the Northern Mariana Islands and the U.S. Virgin Islands, according to the DOJ. Seventeen states and Puerto Rico have hate crime laws but don’t require data collection on such crimes.

Lawyers and proponents of hate crime laws note that although Indiana technically has a hate crime law on the books, it is too vague to be implemented.

“It’s an atrocious law,” said Allison Padilla-Goodman, Vice President of the southern division of the Anti-Defamation League. “The DOJ may say yes, they checked the box and got a law passed, but most groups in the know do not qualify them as a state that has a hate crimes law.”

The Rev. James Woodall, President of the Georgia NAACP, said at a news conference Friday that the organisation supports hate crime legislation but had not endorsed a particular bill. The NAACP is more concerned about ensuring justice within the existing legal framework, he said.

“We still have to make sure that the laws already on the books are enforced,” Woodall said. “We already have a murder statute.”

Asked whether he would support a hate crime prevention bill, Georgia Gov. Brian Kemp said in a statement, “We know conversations about legislation are already underway, and we will work through the process when the General Assembly reconvenes.”

Federal hate crime charge may be an option

Even if a state or territory does not have a hate crime law, such crimes can be reported to the FBI, according to the DOJ.

“If, after the (Arbery) investigation is completed, and it was a hate crime, there’s still the opportunity to bring federal hate crime charges,” NAACP President Derrick Johnson said at a news conference Friday.

In South Carolina, which does not have a hate crime law, a white supremacist who fatally shot nine African Americans at the Emanuel African Methodist Episcopal Church in Charleston in 2015 faced federal hate crime charges.

Xavier Persad, senior legislative counsel at the Human Rights Campaign, said his organization called on Attorney General Bill Barr to investigate the incident under federal hate crime law.

“Hate crimes are different from a regular crime. It’s doesn’t just affect an individual and their families, but the entire community,” Padilla-Goodman said. “We’ve been through many high-profile, just devastating hate crimes in this country over the last few years, between Pittsburgh and El Paso, and I think there’s a lot more understanding of the necessity of a hate crimes bill.”

The DOJ said it enforces federal laws that cover hate crimes motivated by bias against race, colour, religion, national origin, sexual orientation, gender, gender identity and disability.

There was an average of about 204,000 hate crime victimisations each year from 2013 to 2017, according to the DOJ’s Bureau of Justice Statistics.

The Bureau of Justice Statistics and the FBI found that a majority of hate crimes were motivated by a bias against race or ethnicity. Of those, most were anti-black or anti-African American, the FBI reported in 2018.

“Year after year, the largest target of hate crimes is race-motivated hate crimes, and year after year, the most targeted group is African Americans,” Padilla-Goodman said. “Addressing hate crimes is crucial for everyone, but we cannot ignore the role of race.”

Persad said FBI statistics fail to reflect the full extent of the problem because of underreporting.

“State legislators must stop turning a blind eye to the persistent scourge of bias-motivated crimes and work swiftly to enact fully inclusive hate crime protections,” Persad said.