Posted on 08/13/2018 12:33:43 PM PDT by servo1969
Michael Drejka, the 47-year old shooter of 28-year-old Markeis McGlockton over a July 19 dispute about a handicap parking spot, has been arrested and charged with manslaughter, reports the Tampa Bay Times and other news sources. He is being held on $100,000 bail in Pinellas County Jail.
We previously covered this case immediately after it occurred here:
and here:
Law of Self Defense: VIDEO: Shove-Shoot Case Sheriff's Statement
Drejak has a potential, if marginal, justification claim of self-defense here. The key issue is whether his decision to fire the shot was made while Drejak held a reasonable perception of an imminent deadly force attack. Keep in mind that "deadly force" is defined to include not just force capable of causing death, but also force capable of causing serious bodily harm.
Given that McGlockton had just moments before shoved Drejak forcibly to the ground, and remained within a couple of steps distance, close enough for McGlockton to continue his unlawful and potentially deadly force attack, it's not impossible to conceive that a reasonable person in Drejak's position on the ground could have perceived that such an imminent deadly force threat was present.
Of course, it's also not impossible to conceive that a reasonable person in the same position would not have perceived an imminent deadly force threat at that moment, hence the self-defense claim being marginal.
Clearly, if McGlockton had advanced on Drejak, an imminent deadly force threat would have been reasonably perceived. Similarly, if McGlockton had fled at the sight of the gun and been shot in the back while running away, not even a marginal claim of self-defense could be made. By merely taking a step or so back, and then remaining close enough to again attack, the circumstances became more ambiguous.
It's worth keeping in mind, as well, that at trial the prosecutors will need to convince a unanimous jury, likely of six jurors in Florida, that they have disproved self-defense beyond a reasonable doubt, the legal standard in 49 states (all except Ohio), and a high legal standard.
Even prior to trial, however, the state must be prepared to disprove self-defense by clear and convincing evidence. That's because at his discretion Drejka can request a self-defense immunity hearing, make a prima facie case of self-defense (definitely possible on these facts), and compel the state to disprove that claim by the legal standard of clear and convincing evidence.
If you're wondering what "clear and convincing evidence" means, the truth is nobody really knows in any absolute sense, except that it's a higher legal standard than a mere preponderance of the evidence, and a lower legal standard than beyond a reasonable doubt. Florida jury instructions provide the following guidance:
"Clear and convincing evidence" is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue."
Naturally, the media and even some educated people are conflating this self-defense immunity law (§776.032) with the completely separate Stand-Your-Ground law (§776.012) in Florida. These are not at all the same things.
The use of the phrase "Stand-Your-Ground" to refer to self-defense immunity is an indication of seriously defective understanding of the law, as well as a considerable contributor (intentionally?) to sow confusion in the public mind on what "Stand-Your-Ground" actually does (pro-tip, "Stand-Your-Ground" merely waives the legal duty to retreat before using otherwise lawful deadly force in self-defense, and that's all it does).
This arrest also puts the lie to the claim that Florida's self-defense immunity law prohibits an arrest where a person claims their use of force against another was self-defense, which is what Pinellas County Sheriff Bob Gualtieri announced at his press conference on July 20. The truth is that the self-defense immunity law merely prohibits an arrest in the absence of probable cause that a crime has been committed. If a use of force was done in apparent self-defense, that use of force is justified and is not a crime, and an arrest would be inappropriate. Where there is probable cause of a crime, however, the self-defense immunity law fully permits an arrest to be made.
§776.032 Immunity from criminal prosecution and civil action for justifiable use of force.
(2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.
Whether the use of force qualifies as self-defense, or whether the use of force raises a probable cause that a crime has been committed, is a judgment call to be made by policer in deciding whether to arrest, just as they must make a determination of probable cause before they can arrest any suspect for any alleged crime. Later in the legal process a similar judgment is made by prosecutors in considering whether to prosecute a suspect.
Simply because the police choose not to charge in no way inhibits the prosecutors from charging, if they believe the prosecutors believe that they have the necessary probable cause. Two different people can readily come to two different conclusions when, as here, the facts are ambiguous.
-Attorney Andrew F. Branca, Law of Self Defense LLC
> Part of that polite society quote involves armed people avoiding bickering, arguing, etc. <
Yep. I was going to post something like that, but you said it better.
People should keep their hands off of other people. Right or wrong, he was the aggressor and has paid with his life.
Yes good question. /s
And keep in mind there have been many cases where people have hit their heads and died from shoves like this.
The “fracas” started the moment the guy committed Assault and Battery.
The Baby Mama got the ball rolling. What a waste of Life.
There was enough Stupitidy to go around. What if the guy who was shoved to the ground had hit his head on the pavement and died?
Not defending the Shooter, but I wasn’t the guy who was Physically Assaulted either. The Authorities made the ultimate decision.
First what evidence do you have this guy was "looking for a fight"?.
"He got shoved down as he deserved."
What law is it again that says you have the right to violently shove someone to the ground if they "deserve it" ?
"But unless the guy attacks, you cannot shoot". Sorry but that's NOT what the law says at all.
That is what the dead guy did....escalate an argument into physical assault. The shooter had every right to defend his life.
That's a common line, but is it really true?
I suspect it assumes that people are well-behaved to begin with and don't want to risk their lives unnecessarily.
That isn't true of all armed people or all armed societies.
So you roll up the window and ignore.
It would only work in a society where people were armed AND laws were enforced.
Big dude assaulted little guy. They don’t show little guy flying backward, bouncing off concrete.
No assault, no problem.
There wouldn’t be a prosecution if the big dude wasn’t black.
The intent of the quote is that armed people know they are armed and thus avoid starting arguments and such.
An armed man walking around with a chip on his shoulder is the bad guy, and is screwing all of our rights.
Numerous episodes of Gunsmoke, The Rifleman, Bonanza, and Wagon Train explain this concept in Shakespearian detail.
This isn't the school playground. This guy was violently assaulted and could have easily been killed by the attacker.
My feeling is he could have held his fire but the way the law reads I think he was justified in the shooting as he easily could have still believed his life was in danger.
The moral to this story is if you escalate a situation into a violent attack you may well get killed in response. The attacker should have kept his hands to himself said his peace to the other guy if he wanted and got in his car a left. If he did he would be alive today but he choose to commit a violent assault and ended up losing his life.
If I were on the jury, the shooter walks. I don't exactly think he had to fire but he was certainly justified in doing so.
Actually, you touch on why I was so confident, after the facts came out, that Martin started the fight with Zimmerman.
I would ask people this simple question: You have two men. One is a short, 30ish pudgy guy with a gun. The other is a tall, lanky guy who gets into fist fights for a hobby and recently lost a scheduled fight.
The two guys confront each other, resulting in a beatdown followed by a shooting. Question: Which guy started the fight?
I saw no evidence that he was "screaming wildly". Even if he was, that doesn't give anyone the right to physically assault him. If I was seated on the jury I would vote not guilty.
The one who "started the fight" is dead and buried.
Shoot whoever you please. No skin off my nose.
He was constantly starting arguments and had displayed the gun before. The store owner tried to have him banned from the property. Yes sport, he was looking for a fight.
If you walk out of the store and find someone arguing and swearing at your wife, yeah he deserved to be knocked on his ass.
Last the law does indeed prohibit shooting an unarmed man who is not attacking you. He can stand there 6 feet away and cuzz, threaten, shake his fist and bow up his chest. If you shoot him, you’re a murderer. That main exception to that is probably a woman, or an elderly person.
Like I said though, go shoot whoever you want. I’ll sip cold coffee as I read about your conviction in the papers.
Didn’t the Sheriff already make a statement in public that it was a SYG case? Call him as a witness.
I’ll have to disagree. They are about 5-6’apart when the shot was fired.
“So you roll up the window and ignore. “
So when you are CCW, you ignore minor transgressions of others and avoid your own personal hall monitor pet peeves. Report them to the police. Maybe they get a ticket, maybe they don’t.
Lots of things led up to this situation. Shooter had a history of doing stupid stuff. I suspect the ‘pusher’ was also not a good boy. Fate had them meet each other at the local stop and stab and this is the end result. This plays out everyday across America.
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