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
Actually, emphatically correct.
First, there is NO law against politely and calming talking to a stranger.
Second, it is not a “fight” to politely and calming talk to a stranger.
Third, IF you are going to argue that the parking space dispute was a “fight”, the WOMAN started the fight by illegally parking. The man RESPONDED to that action by politely telling her she was illegally parked.
THis should not be a dispute. If you are walking down the street, and someone throws a candy wrapper on the ground, and you say “hey, you should throw that in a trash can”, that does not justify another person coming up and assaulting you physically. But you seem to argue that it does, and that any person who tells another person they have done something wrong is “starting a fight” and should expect to be physically attacked.
I think what will help in his favor is that he took a single shot, to center mass. It shows he had no intent of trying to kill the guy (if you want to kill someone, you are more likely going to keep pulling the trigger).
He could easily argue that he hit the ground, was momentarily disoriented, saw the guy take a step toward him, pulled his gun, and before he realized the guy was reacting to the gun, he pulled the trigger once.
“He was constantly starting arguments” = he had before approached people who parked illegally, and politely told them to move.
“displayed the gun before” = one man who had parked illegally and gotten out of his car to yell at the man claims the guy pulled the gun on him and claimed the guy sadi he’d shoot him. There was no police report, no arrest, which suggests this didn’t actually happen in that fashion, because brandishing a gun is also an offense that the police would take seriously and investigate.
On the other hand, what difference does it make. “Well, yes, the guy was robbing him when he shot him, but he was just looking for fights, he pulled a gun on another guy who tried to rob him last month”.
In every case where the man is accused of starting something, the actual “something” was started by people committing an illegal act. It is kind of funny how people have gotten so used to their own entitlement that they feel no shame in actually COMPLAINING when someone tells them that they area illegally parked in a handicapped space.
I didn’t have an opinion in this case until I saw the video. The guy never really knew the guy was going to attack him, because he was focused on the woman in the car. After he hit the ground the women is out of the car approaching him, and so is the initiator of violence, while he pulls up HOA shorts. The shooter pulls a gun out, and for a millisecond and no longer, the agreeaor stops, then is hit by a round.
Perhaps it wasnt wise to make a big deal about that woman breaking the law,. It was very stupid to attack the person having a ‘verbal’ dispute, from an unexpected angle. It was insane to try to continue the assault and have another person also approach especially since you don’t know if they are armed.
This guy, IMHO, has little chance of being convicted UNLESS the police have other information about his past behaviors or ‘plans’. I have to wonder if a white man had pushed a handicapped black man to the ground and been shot, if there would have been an arrest at all.
Actually, I probably would, as that is not a crime, just a petty ill-mannerism.
If I saw a guy stealing someone’s popcorn at the movie, I would say something.
Exactly!
The msm is doing the same thing they did to George Zimmerman.
The standard for the use of deadly force in most states is that a reasonable person must be in fear of death or great bodily harm of himself or others.
In the full video Drejka is close to the car speaking to the woman, she originally said harassing, and then backs off to 4-5' away.
It appears that she sees McGlockton exit the store and walk up.
It doesn't appear that Drejka notices him.
She then gets out of the car and moves to in front of Drejka as McGlockton arrives and violently shoves Drejka to the ground.
Up to this point it was a verbal altercation.
McGlockton did take 1 step back but was still facing Drejka and still well within range to continue the attack.
Would it be reasonable for Drejka to think that after being violently blind sided and assaulted by a much larger man 20 years his junior that more was to come?
Also... Mcglockton was still advancing toward Drejka when he pulled the gun. Drejka fired within one second after drawing. No way a jury convicts.
Rationalize all you want, but when the shooter started harranging the woman, the fight officially started. If the husband did not get out of the car to defend her, he would not have been much of a man.
I think I agree with you on all of your examples, mostly because most of them make it highly impractical to take any action. Chasing people down is not going to work.
If I saw a person in a getaway car, I might in fact follow them while I call 911 and provide a description, but not closely.
I was eating lunch with my family and some guy came into the restaurant and hauled off a waitress. I ran out the door after him, and confronted him (along with the manager of the store). At some point I stood between the guy and the manager, because he knocked the manager down and was kicking him.
If I saw a parked car throw something out the window, I would probably yell to them. If I saw a person driving the wrong way down a street, I’d do everything I could to stop them. If I saw someone sit in a seat at a theater that I knew someone else was in, I’d tell them.
I realise we live in a dangerous world where people just want to hide in their own cocoons and let whatever happens around them happen. That’s not my nature.
His mother was, and had not been able to park in handicap spaces because of people who think they are too important to follow the rules.
Actually, the argument was between a person saying they would never say anything to anybody doing anything bad, unless it directly impacted them personally, and a person saying it was OK to tell someone they parked illegally in a handicap space.
So in the the analogy, the response we are looking for is “telling the one kid to stop hitting the other kid”, not “shoot everybody and let God sort it out”.
While the opposing side was “it doesn’t impact ME that some kid is getting beat up, so I would just keep walking and not say anything, because why risk myself for someone else”?
The right response of course in a civilized society is to dial 911, walk up to the kids, tell the boy to stop, and then if he doesn’t, to intervene using the least amount of force necessary to separate the two, while you determine what is happening. This could get you killed of course.
Msm is trying to poison the jury pool with their biased reporting.
You base that on a still screen capture? Are you serious? He turned and walked away AFTER he got shot. The video shows the violent felon advancing on Drejka until he saw the gun being drawn. Drejka fired within one second after drawing. The best the left and the BLM crowd can hope for is a hung jury.
It would help if you kept to the actual facts of the case.
The man was in the store, not in the car, so he couldn’t “get out to defend her”.
The shooter was backed away from the car when the man came out of the store.
The woman got out of the car and confronted the shooter when she saw her man coming up from behind, so the victim knew that his woman was actually bringing the fight to the man, not the other way around.
By appearance, it seems more likely that the woman got out to distract him while the man attacked him from behind.
The altercation started when the woman parked in a space reserved for handicapped people like the man’s mother. The man was reacting to that provocation, by defending his mother’s right to that parking space.
The FIGHT started when the woman got out of the car and approached the guy to distract him while her man came up from behind to blindside him.
I’m watching a baseball game, and the pitch curves into the dirt, and the batter swings, really after the ball clearly is bouncing. You can see it in the still picture, the ball is touching the ground, and the guy is just starting his swing. How stupid is that batter?
2 seconds is not a long amount of time in a life-or-death situation. One shot is not the typical reaction of a man who is trigger-happy.
>>He turned and walked away AFTER he got shot.<<
No...not so much. I’m not defending the @$$ that pushed him to the ground, but this guys life was not in imminent danger.
He got pushed. The guy that pushed him did not advance after he went down and certainly did not advance when he saw the gun. Right there...that 2 or 3 seconds from pulling the weapon and the firing into the guys chest will hang him.
This reminds me of the case of the Oklahoma City pharmacist that shot to death one of the three black kids that tried to rob him. There was a lot of back and forth on FR on whether or not he should be given a medal or if he should be in jail. From the facts of the case, I predicted he would lose every penny he ever owned and spend the rest of his life in jail.
One person on FR in particular blasted me for that. Just like you are doing. Anyway, I was right. I PMed that guy after the pharmacist was convicted and sent to jail. He never answered. I believe that the shooter in this case will also end up in jail. I will be right here, too.
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