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
No, that's a crime on it's own. But it has nothing to do with whether the shooter was justified in shooting at the moment he did.
This is going to be a tough call. Usually you can only use deadly force to protect your life (or others) from threat of death or serious bodily harm. If the threat retreats then the justification for deadly force may also be void, even if the threat got in a punch. You also have to have clean hands yourself. It would have been better it seems if he had just recovered and filed assault charges. Better still if he hadn't harassed the family member over parking, if in fact he did that. At this point his only defense might be that he was disoriented from the assault and still felt threatened with further assault (passion of the moment plea).
True. And with Zimmerman, he was fully justified. He called the cops to report something suspicious. Trayvon attacked him from ambush and was slamming his head into the pavement.
Even had Zim actually started the physical fight, Trayvon escalated it into a deadly force situation by repeatedly slamming his head into concrete.
He looked pretty animated is the moments leading up to the shove to me.
Guess it’d be a hung jury if we were both on it!
She got out of the car.
Just like Saints Martin & Brown are pretty sketchy thugs to be held up as heroes by the BLM crowd, this guy's actions in escalating an incident that was none of his business, makes him a poor example for those if us who believe in armed self defense.
He didn’t harass anyone over “parking”. He informed the woman that she was parked illegally, which any law abiding Citizen should have done. Also notice that the attacker was advancing to continue the violent assault until the moment he saw the gun being drawn.
BINGO.
I suppose I would too.
Hate to be a sitting duck.
“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....”
Do you have a source for this information?
The BG was moving away and clearly so when the shot was fired. If the killer just had shot in the air that would have made the deceased run even faster.
This was a destructive moment and will have political consequences, not the least firing up the gun grabbers.
Really??? I don't feel that obligation. Just because someone else is a a$$hole doesn't mean I need to confront them.
Also notice that the attacker was advancing to continue the violent assault until the moment he saw the gun being drawn.
I haven't seen the video. Just going by what others have said. I have heard two stories, one where the assailant was coming back for round two, and another where he was retreating. What actually occurred at this point will determine the jury outcome.
He didn’t make the cut for “Parking Wars”.
The other guy was in fear for his WIFE. He comes out of the store and this idiot - who probably wouldn’t have been so full of himself if he had been unarmed- was harassing his wife over what is not his business, but a matter concerning the management of the store.
The guy with the gun wasn’t in his own car getting assaulted. He wasn’t on his own property getting assaulted. His own wife was not getting assaulted. The business was not getting robbed. He was in the other guy’s parking spot with the other guy’s wife and kid in their own vehicle minding their own business and he escalated an argument far beyond the value of the dispute by not leaving after he had his say, probably because he had Facebook disease- a bad case of virtue signaling making him ridiculously self righteous. There are other people, no doubt, behind the guy who came out of the store who could be hurt; it was a public place and well lit. The guy who came out of the store wasn’t threatening any innocent bystanders and he would not have been a threat to the virtue signaler if the virtue signaler had not tangled with his wife.
You can read more details in the link at the ORIGINAL THREAD from last month when the story first broke. You can even read the same comments from FReepers all over gain.
Really???? Is there any crime you might witness where you would feel an obligation to confront?
A couple of questions come to mind.
Was there a spoken threat after the assault but prior to the shot being fired that would have caused the shooter to take action?
Was there a slowing of the shooters reaction to the assault because of physical harm or a cognitive delay? Are we sure he was aware of the two second interval?
There seems to be a difference of opinion based on the apparent hesitation seen on video. I wouldn’t presume to know the answer to these questions but would rather the evidence be presented to a jury, factually and without emotion.
Agree this is not a clear case from the viewpoint of the video. However the law states if the defender had a fear of imminent deadly force attack. Clearly the deadly force attack bar had already been met. The question is was the shooter in imminent danger of that attack continuing and I would say the answer is clearly yes. Police are very routinely exonerated over a shooting of an attacker based on the "21 foot" rule or Tueller rule. The attacker was definitely inside 21 feet and even though it appeared he backed up slightly he could have simply been making a move to circle the victim and continue attacking from a different angle. I think a good lawyer will bring up the 21 foot defense very quickly. In my opinion this is a clear case of self defense.
Too late for that now. "The process is the punishment".
Michael Drejka will be out 400k whether he is convicted or acquitted.
This case will be decided by the racial makeup of the jury. Blacks will almost certainly vote for conviction based purely on race. Whites who want to prove that they are "not racists" will likely vote for conviction.
The DA will attempt to exclude jurors who might have any other viewpoints. The Defense will have a hard time excluding genuine racists from the jury.
Facts of the case and of the law won't matter much.
I cant believe you are going to argue that every infraction/crime is equally deserving of a response. What a dumb thing to say.
If I saw someone through garbage out the window of his vehicle, no I would not chase them down to scold them. If they were speeding I would not give chase. If I saw someone jay walk, I would not try to do a citizens arrest. If I saw someone come out of a bank and jump in a getaway car with a bag of money, I would not feel obligated to run them down. Why endanger myself or family over any of these?
Now, if I or my family were threatened by someone, I would defend them or myself.
If I were elected Sherriff then the story is different.
Nobody made me hall patrol. Who appointed you?
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