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
Thank you for that info - I just went back and saw the original story...Yes, the guy was a jerk for parking in a handicapped spot, and yes, he did come up and shove a man who was yelling at his girlfriend. No argument on either of those points.
BUT, the man who was carrying the weapon started the confrontation AND fired his weapon at someone who was clearly backing away from him and did not pose an imminent threat. I agree with the filing of charges in this case!
“Police are very routinely exonerated over a shooting of an attacker based on the “21 foot” rule or Tueller rule”
With an edged weapon, or maybe a lead pipe. Not empty handed.
The attacker was advancing when the man drew the weapon. He only took a step back after he noticed the gun. At that point it was too late. I would argue that the woman illegally parking in a handicapped spot started the confrontation. Her boyfriend escalated it by violently assaulting the man.
Most handicap spots I see are EMPTY. I think truly handicapped people should get the privilege of minimizing their effort to get from car to store, but I also think its a lot of wasted empty space most of the time. Regardless, I don’t go scouting the parking lot for cars parked in a handicap spot that don’t have a handicapped placard. Go for it if you want to put yourself out there, but its not a civic duty, and it might be a good way to wind up in a confrontation you will regret later.
“SO if you were standing in line at the movies and some @sshole cut in line right in front of you, it wouldn’t be any of your business, right? You would just stand there and say nothing?”
If I was carrying, no I would not say a word. It’s a trivial insult at best. There is too much risk of it escalating into an argument or fight. It isn’t worth it. When you are armed, you better not be walking around thinking you are going to right wrongs, point and address out trivial insults, etc.
Most handicapped spots are right in the front of the store, so there is no need to “go scouting the parking lot”. It’s “waisted space” until some handicapped person really needs the spot and some lawbreaker is parked there. Of course.... no skin off your back.... just keep on truckin’......
You must have been the school hall monitor when you were growing up...
I looked at it from the perspective of the guy on the ground and thought the guy standing over him stepped back in a defensive posture, turning slightly to offer less of a target, and the guy on the ground could no longer see his right hand, he could have been reaching for his own gun.
So your argument is that because the man was lawfully carrying, he should ignore anyone breaking the law. Got it.
Crossing guard with a fancy yellow belt. Respect my authority!
“What if you saw a little kid being bullied and assaulted by a much larger individual?”
Oh yeah? Maybe the little kid just stole some candy from an even littler kid, and that’s his big brother who stepped up to save him. And now you jump into the mix not knowing who from who, and which from which. So someone tells you to shut up, and you pull a Glock and use all 17 rounds. And then when you’ve turned them into Glockamole, you find out you shot the big brother. Smooth move.
All over some caramel m&m’s.
Bet you never thought of THAT, did ya?
Disagree with what? That the shooter's life was not in immediate danger when he pulled the trigger? If you've watched the video I linked to in post 19, please explain your view of the matter.
McGlockton (ironic name) was backing away after the firearm was presented, but Drejka fired anyway. Drejka may have been disoriented from the shove, but he did have enough presence of mind to draw.
Given that Drejka started the argument with McGlockton's partner, and McGlockton only saw her and Drejka standing less than a foot apart yelling at each other, it wasn't unreasonable for McGlockton to react the way he did. He separated his partner and the person confronting her, then maintained his distance from Drejka.
Drejka was the aggressor from the beginning by trying to be the parking lot police, a role he apparently has performed many times at that same convenience store.
Ya.... Thought of that. Seemed extremely unlikely so I rejected it out of hand. But if it assuages your guilt... that’s what is important.
Perhaps you didn't notice but she exited the car to confront Drejka. Got up in his face. The attacker was still advancing after he violently assaulted Drejka and only stopped advancing when he saw the weapon being drawn. Less than two seconds later, Drejka fired at the attacker who was still facing him.
There was nothing to argue about. She was illegally parked in a handicapped spot and Drejka asked her to move. She is the one who decided to argue. Exited the car and got in his face.
At times, you keep you mouth shut.
Because you don’t know how many of that individuals friends are on hand, if one is behind you, or if they are going to start something.
Or just don’t go to places with crowds.
Pulling a gun should lessen the fear of bodily harm. I have a gun which I will use to kill you if you attack me. I do not have a gun to use if you attack me. Which situation has the legitimate fear? I have a gun and I just got the drop on you. Now my fear level is even lower.
Fear is not the legal standard. A belief that there is the threat of imminent bodily harm is the standard. Emotion is not belief. You cannot kill someone simply because you are afraid.
this case has zero to do with a parking space and everything to do with a man being assaulted and believing he was in fear for his life.
Drejka was blindsided and violently shoved. I would absolutely have felt in fear for my life in that situation. Nothing else matters.
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