OPINION: The ugly past of Georgia’s citizen’s arrest law

Gov. Brian Kemp announced his plans Tuesday for a major overhaul of the state’s citizen’s arrest law.

The law, which has remained essentially unchanged since Georgia first codified it in 1863, gives private citizens the authority to arrest other citizens if they witness a crime or the crime is “within his immediate knowledge.”

Last year, the Georgia law was wrongly used by a local Georgia prosecutor as an excuse not to arrest two white men suspected of killing Ahmaud Arbery, a Black man, as he was jogging through a Brunswick neighborhood.

Kemp and a bipartisan group of lawmakers vowed Tuesday to drastically rein in the law, which Kemp has called “ripe for abuse.”

But when you know how the state’s expansive version of the law found its way into the Georgia code, you start to understand that it was people, not laws, being abused when the right of one man to capture another was formally adopted in 1863.

As the AJC’s Bill Rankin has written, the concept of citizen’s arrest dates literally to English Medieval times, before formal police forces existed. English common law was then imported to the British colonies and largely governed the United States, even after America declared independence.

In 1863, Georgia became one of the first states in the country to formally codify its laws, including citizen’s arrest, led by a lawyer named Thomas R. R. Cobb.

Cobb was the cousin of U.S. Rep. Thomas W. Cobb, for whom Cobb County was named.

He was also a secessionist and such an unvarnished proponent of slavery he wrote a book detailing the benefits of slavery, not just to landowners, but to enslaved people themselves.

An enslaved man’s health “is improved by his transport and enslavement,” Cobb wrote in An Inquiry into the Negro Law of Slavery, adding that he, “has arrived at his greatest development while in slavery.”

Cobb published his book about the merits of slavery in 1858. Four years later, after years of work led by Cobb, the Georgia Code was adopted.

Although a three-man commission was drafted to codify Georgia’s laws, Cobb was so credited with the final product that the Georgia Code was often called “Cobb’s Code

Timothy Floyd, a professor of Law at Mercer University School of Law, described Cobb as “the principal draftsperson of what became the Georgia code,” including the citizen’s arrest statute “almost exactly” as it is today.

The new laws took effect in Georgia just as the Emancipation Proclamation went into effect. Thousands of enslaved people fled their Georgia captors searching for Union troops to protect them.

While Floyd said there’s no way to know whether the citizen’s arrest law was adopted precisely to protect slave holdings, “I don’t think it’s a leap at all to assume that it was in the minds of the members of the legislature that voted for this statute.”

Just as brutal, Floyd called Georgia’s history of lynching, which began immediately after the Civil War and until the middle of the 20th century, “what’s most important about this law and the history of Georgia since the 1860s.”

To the professor’s point, the Southern Center for Human Rights has documented 589 known lynchings in Georgia in the 70 years following the end of the Civil War, when mobs of white citizens captured and killed Blacks, often under the guise of stopping an illegal act.

Many called Ahmaud Arbery’s killing a modern-day lynching. If anything good came out of that tragedy, it’s that the citizen’s arrest law itself may finally fall, 156 years after the Confederacy fell, too.

It’s proof that the future in Georgia is not required to look like the past, a reality even in the Cobb family.

Nearly 100 years after Thomas R.R. Cobb died fighting for the Confederacy, his great-grandson, Charles L. Weltner, was elected to Congress to represent Georgia’s 5th Congressional District in 1963.

The next year, Weltner became the only member of Congress from the Deep South to vote for the landmark 1964 Civil Rights Act.

“I would urge that we at home now move on to the unfinished task of building a new South,” he said on the House floor. “We must not remain forever bound to another lost cause.”

Weltner lost his seat in Congress in 1966, punished by voters for abandoning the state’s political establishment of the time. But within 20 years, John Lewis would win the same seat in Congress and stay there until he died.

As Gov. Kemp made his announcement at the Capitol Wednesday, Rep. Calvin Smyre, the dean of the Georgia House, stood to support the bill.

Smyre had promised Ahmaud Arbery’s mother he would work to change the citizen’s arrest law that the local prosecutor hid behind.

“Sometimes, when you’re in a reflective mode, you look back and you say, ‘How did we not do this earlier?’” Smyre said of the law, which he called “archaic.”

“To me, you just have to continue,” he said. “Just keep climbing. Sometimes that’s all we can do.”