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
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?
He is in allot of trouble. The distance between he and the guy standing up, the guy standing there was not approaching the fella on the ground.
Somebody goes to tuning on you, then after a couple of punches backs off...then you pop him, not good.
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?
What are you, a worm?
Bingo!
That is the entire case for the Defense. It sounds like reasonable grounds for the self-defense claim to me - but I am not on the jury.
Anyone who expresses a similar belief is not going to be on the jury either.
The attacker was still advancing until he saw the gun being drawn. If that guy hadn’t had the gun there is no doubt he would have gotten a kick to his head and likely could have been killed.
I probably would say something because that directly impacted me. That is not the same as going around and scolding someone who took a parking spot that I could not use anyway. Like wise if that bank robber tried to car jack my car for the getaway, I would respond. The two situations are NOT the same. I don’t go scouting for trouble.
That parking spot was reserved for the handicapped. What if you were handicapped and had to park a considerable distance away. Would you have said anything then?
why couldn’t he just mind his own business? Let the police find her and fine her.
It’s NOT our job to inform people when they are breaking the law, unless it affects us.
What if you saw a little kid being bullied and assaulted by a much larger individual? That doesn’t “directly impact” you right? You’d just keep on truckin’ right?
That is not my fight. Get it. Call a cop if you want, but it ain’t your fight. If I were handicapped??? That’s is purely a hypothetical here. The shooter was not. Not his business.
You are going off the rails dude. So far from the reality of the shooting incident.
Yeah, I have some doubt that this was a lawful shoot, but I don't know if I could say it is beyond a reasonable doubt.
Really? What if the little kid was unconscious on the ground taking kicks to the head? Not your fight, right? Just let him die.
You assume way too much. Are you the one kicking the little kid? If so then I will intervene and kick your ass, ok?
You get my point.
the trouble with CC is that too many use it as get out of jail free card when simply avoiding situations or retreating from situations would be the better solution...
“If that had been me on the ground I would have been in fear for my life.”
But would you also be someone with a history of playing parking lot monitor, who enjoyed spending your time confronting people who illegally parked?
It’s not like the guy who was killed went out looking for trouble. He was a jerk who parks in handicapped slots and gets physical when he sees someone arguing with his wife/girlfriend.
What was your point again? That some little kid getting his head kicked in by a bigger bully is the same as the wife/friend/whatever of the shooting victim parking in a handicap spot? Head bashing vs rude behavior...yeah I get your point. Is Paul Blart Mall Cop your favorite movie?
The reason so many people illegally park in handicapped spots is that they know most people are too cowardly to call them out.
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