Law of Self Defense VIDEO: Just because it’s lawful to present the gun doesn’t mean it’s lawful to press the trigger
License to Use Force Ends When the Threat Ends
There’s been a shooting in Florida (naturally?) that resulted over an argument about a non-handicapped person parking in a handicapped parking spot, and it was captured on a rather poor quality surveillance camera recording, according to news reports.
It seems that the shooter, 47-year-old Michael Drejka (who happens to be white), was giving his piece of mind to 24-year-old Britany Jacobs for having parked in a handicapped parking spot without the necessary permit. The victim, 28-year-old Markeis McGlockton, who happens to be black, was Ms. Jacob’s boyfriend, and he emerged from the convenience store and approached the argument.
McGlockton approached Drejka, and shoved him viciously to the ground, with McGlockton looming over the downed man.
In response Drejka appears in the surveillance footage to present a handgun at McGlockton. As McGlockton sees Drejka apparently initiating the presentation of his hand gun, McGlockton immediately takes several steps backwards away from Drejka.
It is then that Drejka fires the single shot that would ultimately kill McGlockton, nearly two full seconds after initially presenting the gun at McGlockton.
Rather surprisingly, Pinellas County Sheriff Bob Gualtieri has announced that Drejka would not be arrested over the shooting, on the basis of Florida’s “stand your ground” self-defense law. The facts of this confrontation do not, however, involve any duty-to-retreat issues with respect to Drejka’s use-of-force–he was attacked without apparent warning, and immediately knocked to the ground, and thus placed in a physical position from which physical retreat with safety would have been difficult, if not impossible.
That said, Florida’s self-defense immunity statute, §776.032 Immunity from criminal prosecution and civil action for justifiable use of force, does have the following provision:
(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.
Based on the video footage of this confrontation, I expect a reasonable argument could be made that Drejka’s initial presentation of his handgun was lawful–he’d just been shoved hard to the ground without warning, put in a physical position from which unarmed self-defense would be extremely difficult especially against an attacker nearly half his age who still loomed angrily over him. It’s not hard to see how Drejka could have reasonably formed a reasonable perception of imminent serious bodily injury, which would warrant deadly defensive force.
As often happens when a gun is presented in self-defense, however, here the initial aggressor (McGlockton) decided that he’d goofed in bringing his fists to a gun fight, and he immediately began moving backwards, distancing himself from Drejka. This ought to have been apparent to McGlockton during the two second pause between his pointing the gun and shooting. Had McGlockton maintained his position, and particularly if he had made any movement apparently consistent with continuing to attack Drejka, the fired shot may well have been warranted.
Given that McGlockton was backing up, however, this strikes me as a scenario that plenty of prosecutors would be happy to present to a jury, and argue that the fired shot was not lawful, and which I expect in this instance plenty of police officers would determine at least created probably cause to believe that the shot was not lawful.
Of course, there may well be facts not known to us that could have shaped the Sheriff’s conclusion to not arrest. That, of course, is not the end of this matter, either criminally or civilly. The evidence is being presented to local prosecutors, who will decide whether to take the matter to trial, and the girlfriend of McGlockton, with whom she had three children, has already announced her intention to seek civil compensation for the killing of her children’s father (even throwing out the legal term-of-art “wrongful death”).
–Attorney Andrew F. Branca, Law of Self Defense LLC
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