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
you’re completely wrong. drejka never saw mcglockton coming. How is it remotely possible that drejka started the fight?
talking to the woman in the car is not even part of the equation; has nothing to do with being attacked.
LOL. it is so annoying reading posts from people like you who have zero facts but aren’t shy about creating their own. the guy wasn’t screaming at the woman. there was no audio but even the sheriff said there were no threats at all. and, if she was such a victim, why did she get out of the car to confront drejka when the thug came out of the store??
It’s very disturbing that people like you are on a conservative website, portraying yourself as one when you’re not.
You talk big don’t you?
If you’re lucky you’ll live as long as I have. But it sounds like it may take that long for you to realize that not everyone is an Arnold Schwarzenegger
Bullcrap. You come out and find some guy cussing your woman as she was sitting in the car you wouldn’t shove him away?
If the roles were reversed and mcglockton was cussing and confronting drejka’s wife, everyone would cheer if he shoved him away and we both know it.
Meant to reply to yo-yo. Sorry
Dude.... Mcglockton had a previous felony arrest for beating the crap out of his girlfriend and resisting arrest with violence. Besides.... the woman got out of the car and got in Drejka’s face. We don’t know that Drejka was cussing. There is no audio on the video and I’m certainly not going to believe the word of a woman who was illegally parked in a handicapped space and cavorting with a violent criminal.
I see it the same way. for the record though, I don’t see the parking spot as even part of the issue. It should be completely excluded and the assault only considered as the even that caused the self defense. Everything else is white noise.
oh, cussing now, eh? so you were there and heard it? Because none of us, including the police,have heard anything since there’s no audio. you’re showing yourself to be completely agenda driven instead of fact driven.
any of us should be entitled to say anything to anyone without fear of attack. Period. The thug is the aggressor and paid for it with his life.
> “The one who “started the fight” is dead and buried.”
Wrong.
I was taught that a person carrying a weapon has a legal duty NOT to provoke others.
Good deal
Presuming you're a reasonable person, that won't be the issue. The issue will revolve around the provocation. You can't provoke a fight without the risk of liability should it escalate to a point where you were in fear of your life. Worse yet, it appears there are incidents in the past of this individual provoking arguments over the parking space, and threatening parkers. And possibility an incident in which he waved a firearm.
I would not provoke an incident like that when armed. I acknowledge that the distance was such that I would consider an angry young man larger than younger than me a threat. And look at the video. After being thrown down but prior to drawing his weapon another young man in a blue tshirt approaches him. Then flees when he sees the weapon. That man in the blue t shirt is a threat as well.
High five
Anyone can go on YouTube and watch street fights or batters charging the mound or hockey and so forth
Almost none end in somebody shooting someone who hits them or puchses them down
He’ll id need to put graveyard in my horse pasture for all those I’d shot if I had acted that way from all my fights
Again I salute u
What before you can kill them?
Stupid question
You don’t kill anyone for pushing you down
Unless you’re a coward or you have life threatening scoliosis
Know-it-alls like you have their own opinion and no amount of viewing a broader picture will allow you to see the facts.
Just because you can’t HEAR yelling on the video doesn’t mean it wasn’t happening.
Look at the people going in and out of the store!
If it was just a casual conversation, do you think those other people would be watching the action?
The white guy looks to me like he alerted her husband that she was being accosted in the parking lot. At about that time, she gets out. I am assuming so she won’t be a sitting duck if he tried to do something.
Conservatism certainly is not badgering people with whom you disagree - but making lucid statements of fact or opinion with something to back it up.
Maybe it is you who isn’t the true conservative!
And I’ve been around here long enough to know that people like you are just bigmouths with nothing but bluster. Go take a breath.
and it doesn’t mean it was! libtards make up facts, not conservatives. So you either admit you don’t know what the hell was said or how it was said or you’re not a conservative. I guess it never crossed your mind that it could have been HER screaming that caused people to look, if in fact they were looking at what’s going on.
The attacker was advancing until Drejka drew the gun. He fired two seconds after he pulled the gun. One kick to the head from the attacker and Drejka could have been killed. The attacker Mcglockton has a history of violence with prior felony arrests. Something CBS “News” failed to mention after delving into Drejka’s past.
It’s clear on the CCTV that he is ragging her out.
PLUS he has a history of being a busy-body about handicapped spaces. Wouldn’t be surprised he is laying it on.
And, she being a Thuggette, is probably giving it right back. But BusyBody keeps going because he is holier-than-thou.
Not saying BusyBody should’ve been knocked to the ground, but also saying I’m not sure Thug should’ve been shot.
There is a lot of talk about provocation.
The fact of the matter is, all the way from getting the wrong order at a fast food drive-thru, to being asked to be quiet at a movie, we know that certain recognizable people are provoked very easily.
We should have picked our own damn cotton.
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