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
If that had been me on the ground I would have been in fear for my life.
One would hope that you would not have escalated a parking argument to a life and death situation as this guy did.
Here we go again.
Perfect “shot” there for this situation. Shows how black guy was standing up and turned slightly away when the gun was about to go off.
This could be a hard case to figure. Would have to hear more evidence to fee, absolutely sure this was necessary. My gut is was it was “overkill”.
Florida.....
It will be important to impress upon the jury the concept that human beings are not machines. We don’t make mechanical decisions like, “Danger thread is now increasing distance. Do not take action.” showing up on our imaginary heads up display. Emotions are high and adrenelyn is high.
That’s why, in those old WWII pacific theater movies, you see bullets continuing to hit the water after a flaming enemy plane nosedives into the ocean.
I think it’s overkill, but I understand it. You don’t just change mental modes at the flip of a switch. We are not machines.
An armed society is a polite society. Things like this demonstrate why. i.e. I wonder how it would have gone down if the dead guy knew, from the git-go, that the shooter was armed.
He was out looking for a fight. Lot’s of evidence supporting that. He started THAT particular fight. He got shoved down as he deserved.
Ok, he draws, no issue. But unless the guy attacks, you cannot shoot.
Anyway, I suspect more than a few people here would respond with a shove if you came out of a store and found some guy bullying your wife.
The damned coward made himself the self appointed parking space police. In my experience, that crowd is only slightly less obnoxious than bicycle riders.
So serious question here: does everyone get one free sucker shove to the ground?
“One would hope that you would not have escalated a parking argument to a life and death situation as this guy did.”
I keep hearing this angle. This argument could have been over a piece of gum, or the Yankee game, it doesn’t matter an assault is an assault. I’m not arguing the charges brought upon this guy but I don’t think bringing up a parking space is relevant to anything.
Let’s have a fair trial, hear all the facts, and hope for a fair and impartial verdict.
Or those that won’t get out of the left lane!
“An armed society is a polite society.”
Yeah, except for the guy starting an argument with a woman sitting in a car when her husband walks inside. That wasn’t polite. Part of that polite society quote involves armed people avoiding bickering, arguing, etc.
So true. Left lane slow movers annoy and mystify me.
This clown was certainly no George Zimmerman, but he was still wrongfully attacked. I believe it is 50/50 that he beats the rap.
Not necessarily.
But if you saw some guy screaming wildly at your wife while she sits defenseless in your parked car, you might also be prone to defending her first and then sort out the issues after.
I do. If you're gonna start a fracas that ends in pushing and shoving, you ought to be man enough to respond in kind; not with a gun.
The key part is that you know they are armed.
An armed society may be a polite society, but when politeness doesn’t happen, it gets resolved pretty quickly, and pretty finally.
No, but neither do you get one free shot at the guy who sucker shoved you then backed away.
Watch the entire video, not just a still image. When the gun was pulled, the man had a legitimate fear for his life. But when the trigger was pulled, he did not have that same fear of imminent bodily harm.
The one who started the fight should not be able to claim self defense.
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