Ahmaud Arbery and the racist history of loitering laws

Ahmaud Arbery went for a jog in a neighborhood of Brunswick, Georgia, a coastal town south of Savannah, in late February. He paused to look around a construction site of a new house. Then, in the middle of his run, a newly public video reveals, he was confronted by Gregory and Travis McMichael, a father-son duo — the father, Gregory, a retired police officer — who'd seen Arbery and decided he looked like a local burglary suspect.

Arming themselves with a .357 magnum and a shotgun, the McMichaels, who are white, chased Arbery, who was black, with a pick-up truck. The video doesn't always keep the three men in frame, but we see Arbery attempt to go around the pick-up only to be intercepted by Travis McMichael with the shotgun. There's a shot, then the two men tussle for the weapon, then another shot at point-blank range, after which Arbery stumbles away, attempting to run before collapsing dead on the pavement. The McMichaels claimed they were attempting a citizen's arrest and shot Arbery, an unarmed runner they'd chased and cut off, in self-defense. No charges have been filed.

The video's release prompted protests, plans for a grand jury, and a statement from Georgia's attorney general calling for swift justice. It's a welcome call, but swift justice wouldn't have required a viral video. And this case is all too familiar: It calls to mind the spate of nationally reported killings of unarmed black men and boys, often by white police officers, over the last six years. But it's also reminiscent of a longer American history of doing violence to black men for the "crime" of being out in public. Arbery's death resembles nothing so much as lynchings conducted in the name of vagrancy laws, Jim Crow-era legislation crafted to create an endless supply of excuses to harass African Americans and even arrest them, jail them, and profit from their labor.

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"We have the power to pass stringent laws to govern Negroes — this is a blessing — for they must be controlled in some way or white people cannot live among them," said one Alabama planter in the post-Civil War era. The Jim Crow "black codes" were indeed stringent. "Nine Southern states adopted vagrancy laws," writes Michelle Alexander in The New Jim Crow, "which selectively made it a criminal offense not to work and were applied selectively to blacks."

The black codes also worked hand-in-hand with convict leasing laws, Alexander notes, which "allow[ed] for the hiring out of county prisoners to plantation owners and private companies. Prisoners were forced to work for little or no pay," supplying the plantations with cheap labor and the county governments with an income stream. It wasn't antebellum slavery, but neither was it an entirely different creature — and indeed court decisions of the time, like 1871's Ruffin vs. Commonwealth, decided by the Virginia Supreme Court, held that a prisoner is a "slave of the state" who has forfeited "all his personal rights except those which the law in its humanity accords him."

While the classic vagrancy law required proof of employment, some of these measures also included "loitering" as an offense. An 1866 Georgia law banned "wandering or strolling about in idleness." Kentucky enacted "laws which allowed persons guilty of 'keeping a disorderly house, loitering, or rambling without a job' to be arrested and bound out to the highest bidder for a year's service."

And like most vagrancy laws more broadly, anti-loitering laws were race-neutral on paper. In practice, they gave police a reason to arrest black people, especially black men, simply for their public presence as opposed to any specific criminal act. The concept of vagrancy, including loitering, as a criminal offense was also used by racist vigilantes to justify lynching.

By 1949, vagrancy was criminalized in every state, but most of the laws have been withered under court scrutiny in the years since. A Jacksonville, Florida, law was struck down by a landmark 7-0 Supreme Court decision in 1972. It permitted arrest of "[r]ogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, ... persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers," and many more. (The court deemed the Jacksonville law unconstitutionally vague; absurdly, a defendant in a related case was charged with loitering "because he was standing in the driveway, an act which the officers admitted was done only at their command.")

Many anti-loitering laws have been rewritten for greater specificity in the last 50 years, ostensibly to address issues like gang violence and prostitution, but they remain on the books and subject to tremendous abuse. More importantly for Arbery's case, the idea of loitering as a threatening act by African-American men remains embedded in our culture.

Thus do black parents teach their children to take extra precautions and black children worry about their parents. "My wife often cautions me against going out at night," tweeted black Michigan pastor Mika Edmondson in response to Arbery's killing, "because she knows that when some people see me out at night, they don't see a Presbyterian pastor or a PhD in systematic theology. All they can see is a threat."

That seems to be all the McMichaels saw, too, when they killed Ahmaud Arbery after hunting him in the street.

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