Law of Self Defense: VIDEO: Shove-Shoot Case Sheriff’s Statement
Sheriff gets a lot right, but also gets a lot of the law wrong
Pinellas County Sheriff Bob Gualtieri issued a statement about the shove-shoot case. He gets a lot right in this statement, but he also gets a lot wrong. In the interests of time (and because I have a full-day Law of Self Defense LEVEL 1 Class to teach today in Sacramento CA), I’ll focus on the wrong stuff in this post.
For example, he appears to believe that the legal standard for reasonableness is strictly subjective, which is not the case. One must indeed be in subjective fear, but that fear must be objectively reasonable.
He also talks at some length about his belief that the Sheriff’s office can’t substitute their judgment for that of the shooter—but, of course, they can, and they do, routinely, when they conclude that the facts differ from the claimed judgment of a suspect. And at the same time he explicitly recognizes that now that he’s passed on the case to the prosecutor’s office, so the prosecutor can decide whether to charge, the prosecutor is in the position of substituting their judgment for that of the shooter.
Also, the Sheriff’s implication that the recent change in Florida self-defense immunity law that once a person claims self-defense immunity the law places the burden on the state to disprove immunity by clear and convincing evidence, “this doesn’t happen anywhere else, where one person raises a claim and the other person has to disprove it” (I’m paraphrasing) is nonsense.
In 49 states, when a person raises self-defense as a legal defense the burden of proof shifts to the state to disprove self-defense beyond a reasonable doubt (an even higher standard of proof). The Sheriff may be correct if the discussion is limited to pre-trial immunity hearings, but a burden shift to the state is the norm in self-defense generally.
Frankly, I can see reasonable arguments for either a lawful or an unlawful shoot here. A decision not to arrest is reasonable on these facts, and a decision to arrest would have been reasonable on these facts. But the idea that the Sheriff is obviously and explicitly prohibited by law from making an arrest on these facts is nonsense.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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Comments
Regarding your first post about the legalities of actually firing…..
My understanding is that the whole issue is the dispute about whether the “pusher” was retreating or not, right? Or, at the very least, the dispute of whether or not the pusher was still a threat.
I have watched the video several times. Look at the second man who comes out of the store. He sees the guy on the ground pull his weapon, and he retreats immediately behind a car. The pusher (and his girlfriend) do not….their actions are totally different. This doesn’t necessarily mean that they weren’t in a “retreating mode”, but there is no way a prosecutor is going to press charges when a defense atty will keep playing that video to show what a real retreat looks like. No one knows what they will do if someone pulls a gun on them, but to get 12 people to go against the guy who is “trying to stick up for handicapped people” and then trying to argue that a guy running behind a car retreating is similar to what the pusher was doing….well….that’s a losing case.
The sheriff may be wrong in dissecting the law, but it’s easy enough for me to see why the shooter was not prosecuted.
I believe the bottom line is that Law Enforcement and the State Attorney concluded that the evidence uncovered in the investigation was not persuasive enough to prove murder or manslaughter charges beyond a reasonable doubt to a jury. (It is six jurors in non-death penalty case in Florida) to convict.
Most prosecutors in Florida will not bring charges in this type of case unless they believe they can obtain a conviction.
That video is troubling to me, for the shooter. Sure, the guy shot was an ass for shoving an older man, this was not part of an affray. To me, the video shows the decedent moving away from the shooter slowly, then quickly when the gun is pulled. The shot was a bit premature to prove it was reasonable under all of the circumstances. This is a proper case for a trial.
Any chance that the shooter didn’t mean to squeeze the trigger but adrenalin took over?
I think that excuse has been tried before. It doesn’t work, unless you’re an illegal alien in San Francisco and you shoot some girl at random.
I thought that guy said he was trying to shoot a seal (which is, out there, probably more illegal than shooting a human being).
I don’t believe it is a proper case for trial. Consider, prosecutors will sometimes argue before a jury that the defender’s use of deadly force was unreasonable because he shot the perp in the back.
Expert witnesses can then tell the jury that when you are in the process of shooting to stop a violent aggressor, it’s impossible to immediately react to a signal you should stop shooting. So attackers will react to being shot, and that inevitably means they turn away. But it won’t dawn on the defender right away so they pump a few more bullets into them before they realize the attack is over.
Lesson: don’t be either of the people in this picture.
“this damn fool [Sumner] is going to get himself shot by some other damn fool.”
Stephen Douglas
I agree (not that anybody cares). Before telling off some a**hole who truly deserves it, one should seriously weigh the possible outcomes. I think Massad Ayoob would have a lot to say about this situation.
Mas Ayoob would have thrown a book of matches wrapped in a $50 bill to the man.
A man is dead because he made the incredibly ill-advised, indefensible (and, criminal) decision to violently attack a complete stranger who was engaged in a VERBAL argument with his girlfriend. The man chose to physically escalate a VERBAL confrontation by battering a man who was directing WORDS at his girlfriend.
The surprise nature of the attack (the victim being totally blind-sided by the assailant, without so much as any verbal prelude or attempt to engage him in discussion, e.g., “Hey, why don’t you piss off and leave my girlfriend alone?”), the potential senior age and/or frailty of the victim, and, the victim’s shock and pain and the absence of an unambiguous retreat by the assailant are all relevant facts that combine to make this — in my opinion — an utterly reasonable use of lethal force in defense of one’s person, in the context of a fear of imminent, serious bodily harm.
The case isn’t about whether or not it was stupid or wrong to physically attack a man, it’s about whether that man was justified in shooting his attacker dead as he is retreating.
You ignored the point of my analysis, to wit, that there exist sufficient facts at issue to make this a reasonable use of deadly force. And, incredibly, Right off the bat, you’re injecting your blatantly subjective interpretation of the event.
You have state, definitively (and, foolishly), as if no reasonable ambiguity existed on the matter, that the attacker was retreating. Really? You make that ridiculous statement post-hoc, from the safety of your home, sitting at a computer.
The analysis of reasonableness must come from someone in the shoes of the victim — a victim who was physically attacked, without warning or preamble, and violently knocked to the ground. The attacker’s alleged “retreat” is totally ambiguous. You don’t know the victim’s physical condition. He might be disabled. He might have a bad leg. Etc., etc.
Also, your inane comment laughably posits that the fact that the victim was attacked without warning, in a blindside battery, bears no relevance whatsoever on his state of mind after being violently knocked to the ground, vis-a-vis, the threat of imminent bodily harm?
Really, Einstein? Your “analysis” is as shallow as it is myopic.
Drejka is 47 years old.
Drejka is a chubby 48 year old man. He’s neither frail nor elderly.
If the assailant had survived this incident, there would have been grounds to arrest him for felony battery. I realize this isn’t strictly germane to a discussion of the legality of lethal force self-defense vis-a-vis this incident, but, it makes the deceased an utterly unsympathetic figure.
The deceased escalated the situation.
The deceased violently attacked a complete stranger, without a scintilla of justification.
The deceased is dead because of his exceedingly poor choices and short temper.
“If the assailant had survived this incident, there would have been grounds to arrest him for felony battery.”
Well, you must know something about this incident which I do not know. What circumstances elevate McGlockton’s actions to a felony battery?
Well, it’s definitely battery, since that involves contact.
In Florida, it is a felony to assault any person over 65 years of age. In this case, the shooter is 47, so the felony statute would not apply.
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0784/Sections/0784.08.html
His previous battteries.
That’s right. McGlockton was a piece of work. It could also be first degree felony battery if Drejka suffered GBI.
Here is a thought. How many DA’s in the region have suddenly decided to take vacation time?
lol
White guy shoots unarmed black man. Time for Gov Scott to appoint Angela Corey as a special prosecutor.
Once again, here is the situation.
McGlockton committed a misdemeanor battery of Drejka, by shoving him. When Drejka was sitting on the ground, he immediately drew a firearm and pointed it at McGlockton in a threatening manner. McGlockton then backed up several feet and stopped. Drejka then shot McGlockton once in the chest, which killed him. So, what we have is a homicide. All that remains is to determine if it was justified or not.
Drejka claims that he acted in lawful self defense. As soon as he does that, the provisions of FSS 776.032 kick in and he can not be arrested, by the investigating agency, until probable cause, that Drejka did not act in lawful self defense, is generated or until a warrant, capias ot indictment is issued. So, Drejka is not arrested, at the time. This is fine. He does not appear to be a significant danger to the community nor a flight risk. So, it is entirely permissible for the Sheriff to defer to the prosecutor, in this case. However, the problems with the legality of the shooting still exist.
Now, the prosecutor, or even a grand jury, may decide not to charge Drejka for his actions. However, this does not shield Drejka from civil suit. A civil suit can still be brought against Drejka and unless the court finds that he acted in lawful self defense, he could end up losing everything. And, it is by no means assured that a court would rule that the shooting was justified by the situation. If Drejka had held fire, until McGlockton had made an aggressive movement in his direction, then he would not have this situation to contend with.
I agree with your summary of the event but once again you are putting your sitting behind a computer screen attitude with days of thought about something that this guy sitting on the ground had to decide in a few seconds. This is what juries do but they also have a defense lawyer telling the other side of the story. I have a CCP and do not know how I would react to the same event. All I can say is if the guy had NOT had his weapon he would have been beaten unmercifully. Without years of training, none of us should make the call to blame the guy on the ground for his actions. Only if he had shot the guy in the back would I change my opinion because that would mean that the attacker was running away and posed no future threat. When was the last any of us were knocked to the ground unexpectedly and then cursed by a looming young black guy? Tell me you would feel calm and unthreatened.
Just a couple of things here.
First, I spend over 30 years in Le, much of it in the street. I have been in exactly Drejkas position one more than one occasion. So, I do have some experienced point of reference.
Second, the law, both statute and case law, is very clear on the circumstances under which deadly force can be used against another human being, legally. And, Drejka’s actions do not meet the legal criteria. McGlockton was unarmed and had retreated. There was no REASONABLE expectation of an imminent attack, when Drejka fired. If a LEO had been in Drejka’s position, it would still have been a bad shooting.
What you, and many others, are trying to do here is to justify what was a clear violation of law. So far we have heard the excuse that Drejka may have been stunned by falling to the ground, that he only had a few second to make a decision on whether to fire or not, that McGlockton was black, that there were other people in the area who may have attacked him [though no evidence exists to support that],that Drejka was the victim of a surprise attack, etc.
But, you know what this looks like? A revenge shooting. Drejka is shoved and falls to the ground. He sits up, draws his pistol and McGlockton baks off. Drejka thinks about it for a few seconds then simply shoots McGlockton in the chest. And, what makes this worse, is that so many people are supportive of this action. I wonder if they would be as supportinve if McGlockton was their son or husband.
“What you, and many others, are trying to do here is to justify what was a clear violation of law.”
Not really. We agree with your interpretation of the law, what we disagree on is your perception of events from video.
For example, you claim is clear the aggressor retreated. But it is not clear to us. He didn’t even hold his hands up, a universal sign for “don’t shoot’.
You also claim it’s clear the aggressor intended to cease the attack. But it’s not clear to many of us who watched the same video.
Sucker punching someone and stepping back is not the same thing as breaking contact, anymore than it is when an MMA fighter lands an overhand right and then jumps back 5 feet to bounce around.
McGlockton backed up several steps. He made no further move toward Dejka. And, he had no apparent weapon. So, exactly HOW was he threatening imminent attack? Telekinesis? Stepping away, a distance of several feet, is clear disengagement, unless the person has some type of distance weapon. He would have to cross the distance between himself and the other person while looking directly down the barrel of a firearm. He COULD dance around all that he wanted, but it does not become an attack until he moves TOWARD the other person.
Nice try though.
Don’t get condescending with me. I’ve gone out of my way to be respectful and have even taken pains to phrase my disagreement in as neutral a manner as possible so it doesn’t come across as accusatory or judgemental. Bit don’t mistake that as weakness – you want to get personal, I’m game. Every thread, every day.
That was poor form. I’m not going to whine about an apology, You’ll show us your true self either way, and if I have to drag it out of you it means nothing.
Speaking of nothing, show me where it’s written that taking two steps back is defined as breaking contact or retreat. Because I’m looking at the Duty to Retreat laws, and while they don’t apply here, the language certainly doesn’t define retreat as “take a few steps back”
You are also making blanket assumptions without audio, which is as reckless as your “executed in the street” hyperbole.
Along with all the unsupported assertions. Your arguments basically follow this pattern:
1) Trump should be impeached
2) Legal definition of high crimes and misdemeanors
3) Trump clearly committed those
Up your game. You only discredit yourself and your position.
From the time the violent assault knocking the man to the ground occurred, until the one and only shot was fired, elapsed time appears to be around 5 seconds total. The deadman never put up his hands, didn’t turn to run, just backed up a bit. He made a fatal mistake. 5 seconds is all the time that elapsed.
It wasn’t a “shove”, anyone watching the video understands this. That you use the term in spite of watching the video means you picked a position and ignore the plain truth.
Law, I have no clue and don’t pretend that I do. In the real world, where we all live, a person is allowed to defend their selves. And very few of us are capable of determining that the person that just violently blind sided us with an attack knocking us to the ground has given up at the sight of a weapon, absent overwhelming evidence of such retreat.
5 seconds, from the time of the attack until the shot was fired.
LEO’s and former LEO’s are no better than the rest of us. Only those who have trained substantially have the presence of mind that you seem to require. Even then, with training, many will fail your standard the first time under fire.
So, your defense is that Drejka was an incompetent? Is that it? In five seconds, he was unable to determine that McGlockton was backing up and not advancing toward him? In that same period of time, McGlockton was able to perceive the threat represented by the leveling of the firearm at him and take several steps backwards and stop. Also, Drejka did not fitre upon immediately leveling the pistol at McGlockton, but waited approximately two second, then shot him.
As to what McGlockton did to Drejka, it was a two handed shove. It was delivered with considerable force, but it was not a punch, a kick or a body slam. Drejka was not lifted off the ground he was driven backward and fell to the ground. And, there is no evidence from, the video, that it incapacitated, or even impacted Drejka’s ability to function; as he drew his pistol very quickly after falling.
So people are seeing things in the video the way they want them to be. But it is not me.
“So, your defense is that Drejka was an incompetent?”
No, never implied any such thing. I said he was violently knocked to the ground and 5 seconds later defended himself with a single shot.
“Is that it? In five seconds, he was unable to determine that McGlockton was backing up and not advancing toward him?”
Absolutely.
“In that same period of time, McGlockton was able to perceive the threat represented by the leveling of the firearm at him and take several steps backwards and stop. Also, Drejka did not fitre upon immediately leveling the pistol at McGlockton, but waited approximately two second, then shot him.
For those with some training at the range, but not training in violent attacks, two seconds to acquire the target and squeeze the trigger is not unusual.
“As to what McGlockton did to Drejka, it was a two handed shove.”
It was a violent attack, not someone breaking into line with a shove.
“It was delivered with considerable force, but it was not a punch, a kick or a body slam.”
Correct.
“…as he drew his pistol very quickly after falling.”
As he should have after an attack. It’s why people carry.
“So people are seeing things in the video the way they want them to be. But it is not me.”
And some people cannot see plain and simple attacks for what they are. That would be you.
Mac;”Is that it? In five seconds, he was unable to determine that McGlockton was backing up and not advancing toward him?”
He was just violently attacked, adjusting to his new pov from the pavement, wondering what hit him, assessing the threat level from 3 people who appeared to be working together, taking in whatever words the 3 were yelling at him, and on alert from another blindside attack from other assailants he was not aware of.
“In that same period of time, McGlockton was able to perceive the threat represented by the leveling of the firearm”
McGlockton had already initiated the violent attack. He caught the lay of the land as he attacked. His environment was not violently disrupted. He did not have to reassess a 360 arc of 3+ people all yelling and moving around him at once.
For someone who claims they spend a lot of time on the street, you sure are having a hard time seeing this from the perspective of someone who was just ambushed with Wolfpack tactics.
What if Drejka had held fire, and then tried to stand up from his sitting position? He would have been in a very vulnerable position, and he had not one, but two people, just a few feet away, who were intent on doing him harm, one of them who had already done so. And he would have been in a very vulnerable position if he had remained sitting.
“by shoving him”
Again, that is not a fully accurate description of the attack. The victim hit the ground very hard. He didn’t just slosh his drink.
And a few things are omitted from your analysis;
The aggressor ambushed the victim, blindsided him out of nowhere, unprovoked. A sneak attack.
After the shooting, the shooter placed his firearm in the car (securing evidence) and waited for police to arrive to take his information. No guilty conscience, which implies he acted on a reasonable fear (to him) that justified shooting in self-defense.
I really think, if charged, the outcome will be predetermined during jury selection.
“The aggressor ambushed the victim, blindsided him out of nowhere, unprovoked. A sneak attack.”
And as someone else pointed out in the previous thread this is more relevant than it appears at first glance.
The aggressor was “tricky”. If you use stealth and deception to fight dirty, when you surrender you better be damn sure you put both hands up and keep walking backwards. Because I’m not giving you a 2nd opportunity to employ deceptive tactics, especially if my very life is at stake.
Fen, McGlockton only SHOVED Drejka and Drejka fell backwards. He did not body slam him and he made no attempt to followup on the fact that Drejka was on the ground. Now, if you are comfortable living in a world where you can be shot for shoving someone, fine. But, I suggest that you start wearing a bullet proof vest.
In this case, Drejka’s actions, after the shooting are immaterial. He may well have THOUGHT that his actions were legal and appropriate. But, that does not appear to be the case.
My issue is that you are using the term. “shove” too broadly. I have been “shoved” in line which caused me to bump into the guy standing in front of me. Others have been “shoved” so vioently that they hit the ground hard enough to casuse TBI (Traumatic Brain Injury), putting them in a hospital bed for the rest of their life.
You have consistently implied this “shove” was closer to the former than the latter. I think if you truly thought this was a “clear” case, you wouldn’t need to minimize the amount of force used in the initial attack.
“…using the term. “shove” too broadly”
I’ll say, the broad side of a barn doesn’t cover it. It was a violent attack, blind side.
So, when does Drejka get out of the hospital after recovering from his fall induced TBI? Oh, wait. He didn’t suffer a TBI, or any other injury which required hospitalization, or, as far as we know, any other medical treatment.
It was a shove. Two handed. And McGlockton remained on his feet and only took one step after he shoved Drejka. I have been shoved harder playing touch football.
The point is, nothing that McGlockton did legally justified Drejka shooting him.
But, nice try.
No one said Drejka suffered Tramautic Brain Injury. I was pointing out that broad range of violence that the word “shove” encompasses, from being jostled off balance to smacking your head on concrete pavement hard enough to cause grievous bodily injury.
What if you were lightly shoved of a cliff? Would you minimize the ACTION as a mere push, or instead focus on the RESULT of that act?
Regardless, you have devolved into strawman arguments and personal taunts. Pounding the table because you realize you have neither the facts or the law on your side.
We’re done here. But I’m sorry to see you lose this way. I admired you.
He body-slammed him. The shove forced his body violently onto the pavement. Don’t minimize it.
Often, responsibility for a death belongs to the decedent, but as a society we seem to have made our laws so that they favor placing responsibility with the survivor of a lethal encounter. Then we end up in situations like this one, which is muddy at best. If I were on a jury, and the defendant had been conducting himself peaceably (i.e., within the law) and was physically assaulted unlawfully, with death resulting to the assaulter, I’d have to place the blame with the assaulter, and find the killer not guilty. Self-defense is not a game. If you wait long enough to determine that you’ve been presented with lethal force, you may already be dead. You have an absolute right to survive an unlawful violent attack. If you judge improperly the need to use lethal force to survive that attack, you were forced into that judgment by your attacker. Your attacker is responsible for everything that happens after he puts you into a situation you didn’t ask for. There would be exceptions to this, but generally I suggest that the peaceable, law-abiding citizen has the right to do whatever he believes (on the spot) is necessary to assure his survival any time he is unlawfully assaulted.
In this case, Drejka was not conducting himself “peaceably” he was involved in a loud verbal argument with a woman, which he had initiated. As the Sheriff noted the argument was heated enough to cause an customer who observed it to tell the clerk that something needed to be done about it, which the Sheriff took to mean the police should be called. This is what, presumably, caused McGlockton to leave his child in the store and come outside. When it was clear that his girlfriend was a party to the argument, in intervened but forcibly shoving Drejka away. While his actions were neither proper nor legal, they amounted to misdemeanor battery, they do not meet the statutory criteria for justified use of deadly force in self defense. As McGlockton retreated when faced with the drawn pistol, this essentially ended the fight. And, as McGlockton did not make any overt movement which would indicate any intention on his part to attack Drejka, there is no reasonable expectation of imminent physical attack.
Now, a jury MIGHT look at this, find Drejka a sympathetic defendant and acquit him. But, as his actions clearly meet the criteria for being charged with criminal homicide, a jury should decide that.
Arguing can be peaceable, and is protected speech, and the baby momma started it when she parked in a handicap space with no tag. Drejka made the tactical error of treating that scum like a human amenable to argument, and capable of being shamed into good behavior, but he didn’t provoke a violent response.
McG reportedly approached Drejka in response to a text message from the woman, a message that will almost certainly sink any civil case she could bring, unless she’s able to hide it, or it’s indecipherably cloaked in Ebonics.
Toxicology might enter into it as well if it is shown that McGlockton had substances in his body at the time. As one of my friends put it, there is nothing more annoying than being rear ended at a traffic light, and because YOU were over the limit, YOU go to jail, not the guy who just rammed his car into yours.
This is still not on Huffpo or Drudge. Unless “they” are holding back for a big splashy roll out, this is not high ground they want to die on.
Trayvon martin, all grown up. His type never learns.
Look for the democrat media to start posting baby pictures of this dead bully.
Is this dress blue-black? Or white-gold?
That’s what this reminds me of. Some say the video shows the aggressor retreating, others say it doesn’t. Some say the shooter could be in reasonable fear of grevious bodily injury or death, others disagree.
But most everyone agrees this case is on the edge of justified/unjustified.
So let’s not go 10 rounds with each other over this. Like we did in it’s last thread.
Play nice. Don’t poke. Don’t yank the ette’s ponytails. 🙂
And Andrew, thanks for addressing the Sheriff’s remarks. I think the shooter was justified, but I appreciate your reminder that what the law actually says doesn’t necessarily dovetail with what we think is fair.
So, this McGlockton guy was a black Caucasian?
One subtlety that gets overlooked occurs because of differing views (camera angles) involved. The actual camera in this case gives us a view close to 90 degrees. With that field of view the motion of McGlockton moving back is fairly obvious. From straight on view that the shooter had the movement would be much less obvious. Add in some pain and confusion and it is possible that the shooter did not notice any movement by McGlockton.
Good point. In fact, being dazed from the initial violent attack, his eyes may not have even regained focus until AFTER the aggressor stepped backwards.
I’m somewhat of an expert on getting knocked out. I had a brief hobby at a local MMA Gym before The Wife put her foot down.
More evidence for the fact that married men live longer. 😉
But do they want to?
The original joke is “why do married men die at a younger age than their wives?” Because they want to. I guess it is a followup to “why is divorce so expensive?” Because it is worth it.
Sometimes it just seems longer.
And the score is hrhdhd 0 tom_swift 1 VAGentleman 1
Don’t forget hrhdhd’s husband: 1
Yet another example of LEOs not understanding the laws they’re paid to enforce. Why are cops always sounding off in front of the press, when it should be the prosecutors/defenders and judges?
I have no dog in this fight, and simply look upon it as an opportunity to learn. Wisdom is, after all, just the ability to recognize a mistake as you are making it again. We pretty much know that McGlockton won’t be shoving anyone again, but will Drejka be out patrolling the parking lot at the Quikee-mart in the near future. Trust me, he will be going through the ringer in one way or another for his actions. He may get out of jail, but I doubt that it will be for free, which is what I will take away from this. And will the girlfriend now think twice before using a handicapped spot, when clearly 4 other spots even closer to the door were available. I am confident that i will never be in McGlockton’s shoes because I avoid stupid inconsiderate people like her in the first place, and by example, hopefully my son learns to as well.
Believe it or not, I do run the “does it need to be said, does it need to be said right now, and does it need to be said by me” test most of the time before opening my mouth. Does the upside justify the possible downside. I am surprised that McGlockton doesn’t have a more interesting arrest history. He acted in a way to suggest that impulse-control wasn’t a go-to tool in his box. I seriously doubt that he simply shoved and shut-up. We don’t have evidence of what was said or his facial expressions, but I doubt it was a smile and “have a nice day.” A wild-eyed rage trumps stepping back in my book. I seriously doubt that “nothing was said” and am certain that the girlfriend is not a “reliable reporter” here, but am not sure about the other guy who witnessed the confrontation at the car, the shove by McGlockton, and the response by Drejka. What the witness reported may have factored into the Sheriff not taking immediate action of Drejka. It does confirm, though, what JJ III told us many times, that the only thing you win in a gunfight is the right to walk away. If carrying a gun changes how I act, then I seriously need to question why I am carrying the gun. It could very well be the case that Drejka was an out-of-control NIMBY when he was packing. This may be his take home lesson. There was a person who stated that he had a prior encounter with Drejka, but this of course was stated to the press and not to the legal system, so it carries the weight of dick for me at the moment. Anyone who read the grand jury report on Michael Brown knows that what the press reported bore essentially no resemblance to what went down. While we do have CCTV of this event, it was NOT from the perspective of the shooter and may ultimately only serve to provide an exact chronology of the events.
Here is the learning experience that this presents. before you start carrying a defensive firearm, learn the applicable laws for using it. Obtain training in how and when to use the firearm in lawful self defense.
The problem with this case is that, from the video and statements made by the Sheriff, we have a prima facia case of unlawful use of deadly force in self defense, which amounts to criminal homicide. McGlockton had clearly retreated, and was retreating some 2-3 seconds, before he was shot. He had not committed a forcible felony, and even if he did, shooting him would not have stopped him from committing it. Even if Drejka was “in fear” of an “imminent” attack, which would like result in “great bodily harm or death”, it can be clearly argued that this fear was no reasonable, as it had no basis in observable fact. In other words, his actions are not only chargeable, but prosecutable.
Now, if he had waited until McGlockton had advanced toward him in a menacing manner, especially in the face of a raise firearm, shooting him would likely be very justifiable. But, he did not do that. Instead, he allowed McGlockton to disengage and retreat, THEN he shot him. NOW, he has to really work to justify his actions. And, that is exactly what we are seeing happen here. A number of people are using the spaghetti method to justify Drejka’s actions. They are throwing everything they can find, in the way of a defense, against the wall to see what will stick. All I have done is point out that from the observed actions of the participants, on the video, and the statements of the Sheriff, that this shooting did not meet the criteria for a lawful use of deadly force in self defense,, under Florida state statute. I even provided the statute, in the previous thread. Killing another human being is serious s**t. And, if you do it, you better know exactly what your are doing and if is legally justified.
But your observations come from a video 90 degrees off-axis from the actual perspective of the shooter.
“But your observations come from a video 90 degrees off-axis from the actual perspective of the shooter.”
So, what is your point? Are you trying to make a case that Drejka, from his position a few feet inn front of McGlockton could not see that McGlockton was NOT backing up? Or that his feet were not moving backwards? Where is your evidence for that? Now, if for some reason Drejka could NOT see this movement from his position, that is evidence he can present in court.
My point here is simply that Drejka used deadly force against McGlockton when there is no evidence that it was justified. In that case, the person using the force is usually charged and, possibly prosecuted. It is then his responsibility to show that his actions amounted to lawful self defense. As i said, if Drejka has simply held off firing until McGlockton made any kind of a move, especially a threatening one, in his direction, there would be almost no controversy here. But he didn’t do that. he allowed McGlockton to back up and stop, waited for a couple of seconds and then shot him.
I have nothing more to argue with. And I just found two new eps of “Unforgotten” series 3 on the interwebz. There goes the next two hours of my life.
Mac, I was with you until here, but this is true only in Ohio. Everywhere else it’s the prosecution’s responsibility to show that his actions did not amount to lawful self defense.
Nope, this is the case in every jurisdiction in the country, once the case gets to trial.
A man can not simply stand up in court and say “I acted in self defense” and then sit down and from that point on the prosecution has to prove that self defense did not exist or the man will be acquitted. The defendant has to provide a viable defense. In other words he has to provide some evidence, even if it is only his own testimony, to establish the viability of his claim that the force used was lawful under existing self defense statutes. Whether he acted in self defense is of limited importance in this case, as the complaint is that he violated the statute governing the level of force which may be used in self defense, legally.
In 49 states the defendant merely has to provide enough reason to suppose self-defense is a legitimate issue. He does not have to prove it, the prosecution has to disprove it beyond reasonable doubt. Only in Ohio does the defendant have to prove it (on the preponderance of the evidence). See here.
“So, what is your point? Are you trying to make a case that Drejka, from his position a few feet inn front of McGlockton could not see that McGlockton was NOT backing up”
His point is it’s easier to discern movement along a line if you are perpendicular to it.
That Drejka was sitting at the time, having risen from something like a supine position, affects things. He was in a very vulnerable position, put there by McG, and with McG and the GF, both aggressive, still just a few feet away. If he’d been standing, it would be more clear-cut.
I used to know an older man who carried. He was attacked by three chicanos at a fast food restaurant and knocked to the ground. He chose not to use (or even draw) his weapon specifically because he didn’t want the inevitable legal hassles. As someone posted up thread, sometimes it’s better to eat sh*t than have your life ruined by our twisted legal system.
If he really chose not to use his weapon merely to avoid legal hassles then he must not have believed himself to be about to be killed. And if that’s the case then had he shot it would not have been self-defense, and he’d have had more than legal hassles; whether convicted or acquitted he’d have been a murderer.
“Wisdom is, after all, just the ability to recognize a mistake as you are making it again.”
Actually that’s merely smart. Wisdom is recognizing a mistake when someone else makes it, and then learning not to make it yourself.
I see the word “clear” appearing an awful lot on this page.
Simple repetition of “clear” or “clearly” does not, by itself, clarify anything. If things were really all that “clear” then this case would inspire far less typing.
I think he will be charged. It looks like the threat ended when he drew the gun. I set the odds at 50 50 on conviction.
Maybe the teaching opportunity is that if one feels entitled to flaunt the law, by parking in a handicapped space when one nor his or her family apparently are not burdened by a physical handicap, there can be unintended consequences.
Just like believing one is entitled to flaunt the U.S. Immigration laws and seek asylum for himself/herself and minor children by not applying at an authorized point of entry, an ‘unintended’ consequence is being separated from one’s children.
It’s actually pretty simple – comply with the law.
I leave the nuances of the consequences to those experienced in criminal legal issues – I’ve always found Andrew Branca to be both knowledgeable and persuasive in that regard.
Flout. The word is flout, not flaunt. And the penalty for parking in a handicapped space is not death.
And as David French points out, ”An armed citizen should not be mall-copping his way through life, initiating confrontations. And that’s especially true if you’re a grown man interacting with a young woman.” There was no earthly reason for him to even pick this fight in the first place. She wasn’t even inconveniencing anyone. He just felt like getting in a young black woman’s face.
Mac45….I disagree that the pusher was clearly retreating. The second guy out the door…the guy that saw the gun from more than twice as far away…he clearly retreated. The pusher may or may not have….he was in a gray area…maybe he was or maybe he wasn’t. The guy on the ground also only fired one shot. One shot mitigated the threat, and there was no more firing.
You see a clear retreat and I do not. Witness testimony of words exchanged would help here. If the pusher, once seeing the gun, said “whoa man take it easy” and then the guy one the ground fired, then yeah….there was no justification and it wasn’t self defense. If the pusher, once seeing the gun, said “I’m takin that gun and stuffing it up your…..”, then he was justified because the threat still existed.
I doubt that McGlockton spoke at all.
Some decades ago I read an interesting editorial by a black gentleman decrying the horrifically high levels of casual violence he experienced when dealing with his fellow blacks. Most of his examples and anecdotes were exactly what we see in the video—violent shoving, an instantaneous reaction to frustration, even of the most petty sort. His most detailed example recounted his experience in a phone booth (that’s a clue right there to the age of the editorial). He was making a nighttime call when the booth shook violently. Turning around, he saw an infuriated black man banging and pushing on the outside of his booth, solely because he wanted to use the phone, and it wasn’t available. There was no speaking involved, no threats, no insults; just incoherent rage and, perhaps, a frustrated attempt to push the offending situation away.
If that’s what was happening here, then there would very likely have been no further violence. From McGlockton’s viewpoint, the annoyance has been pushed away; therefore the problem—whatever it is—has been solved.
Or, I could be dead wrong. As an imaginary juror I’m not entirely certain that I could fault Drekja for not waiting to find out. And that would put me in “reasonable doubt” territory.
According to the Sheriff, no words were exchanged between Drejka and McGlockton. I hope that helps.
“You see a clear retreat and I do not.”
Did McGlockton step backwards several steps? Was he moving toward Drejka at any point after Drejka produced the pistol? NO. So, what you “see” is apparently NOT reality.
___ cite the statute that defines “retreat” as taking a few steps back and stopping ____
You claim stepping backwards several steps and then stopping meets the legal definition of retreat.
I say it does not. As defined under Duty to Retreat (which doesn’t apply here, I know) the phrase is “retreat to SAFETY”.
The victim “clearly” and “obviously” did not retreat to safety. He stopped at close range and was shot dead. If he hadn’t STOPPED, if he continued to move away, I would agree with you. But he did not retreat. He stopped.
Regardless, since you claim you are merely arguing the law, be objective and cite the statute that defines “retreat”.
Mac,
Maybe we are all talking past each other here. Are you arguing the shooter is guilty or are you merely arguing there is enough evidence to bring this to trial?
Nevermind. I wrongly gave you the benefit of doubt and assumed you were arguing in good faith.
I withdraw the question. I have to wash my hair.
I am arguing the language of the statute and case law, here. Drejka’s actions clearly violated the letter of the law. He should be charged and let the courts sort it all out.
It is others who are arguing whether Drejka should be found guilty of violating the law. Though I think that he should be convicted of some level of criminal homicide, much more goes into a jury verdict than statutory language. This is a prima facia case of unlawful use of force resulting in a death.
You’re an ANIMAL!
Mac: “I am arguing the language of the statute and case law, here. Drejka’s actions clearly violated the letter of the law”
Okay, fine – I’m on the fence about whether your interpretation of events (mostly assertions) meet the language of the statute. Possibly out of sympathy for the situation the shooter found himself in. But I can feel Andrew head slapping me as reminder that this is about the law, not what is “fair”
So make your case: ___ cite the statute that defines “retreat” as taking a few steps back and pausing ____
Because all I can find that is related is Duty to Retreat common law, which defines retreat as moving to SAFETY.
Do you think the victim moved to safety? Having been shot dead at close range? Obviously he did not retreat to safety.
So if you want to argue the law, be objective – present your argument that the victim met the legal definition of “retreat” and back it up with a cite to the relevant statute.
There is no specific number of steps, feet, or yards necessary by law to meet the requirement of “retreat”. There can’t be, since it’s always situation-specific, usually a matter of nonverbal communication, and subjective in every case. It has to be interpreted, and, as Mac says about deadly-force response in general, it has to be reasonable.
I say this case is in a gray area, not necessarily within the “book-ends”, as the sheriff put it, but I’m on the fence.
Sorry, but there is no gray area here. After the initial shove, McGlockton did not continue the attack on Drejka. When face with a drawn firearm, he immediately disengaged and withdrew [retreated] several steps. He made no discernible move toward Drejka before Drejka shot him and he did not possess any visible weapon. The shooting was not justified under statute.
And THAT is what I am trying so desperately to make people understand here. Drejka failed to comply with the law. Therefor, he is extremely likely to be forced to convince a jury that there was smoe exigent circumstance which allowed him to do that. This is going to be extremely stressful, long and expensive. And he may end up spending a significant period of time in prison. And all because he was not adequately trained in the laws governing the use of force, particularly deadly force and the proper response in a confrontation. And the response here is to attempt to try to excuse his actions, often with the statement that it could have been the person seeking to excuse his actions. Well, it doesn’t work that way. You carry a gun, you are responsible for any damages caused by the weapon. You use it to threaten someone, or shoot them and you are totally responsible for the results. In Florida, if you acted according to statute, then you will likely walk. And if you find yourself being sued for civil damages, you will likely have a favorable outcome and if found to have acted lawfully, you get reimbursed for your expenses, as much as the plaintiff can pay. It will still likely cost you money, but it is better than being dead of in jail. So, get the necessary training to insure that you survive both the initial conflict and the legal repercussions. Oh, one more thing. If you miss your assailant and hit kindly old Mr. Murphy two blocks down at the bus stop, you own that, too.
“Sorry, but there is no gray area here.”
We are approaching 300+ comments on two threads discussing that gray area.
We have no audio.
We aren’t sure what the legal definition of “retreat” is.
And we’re not ignorant. Most of us have followed Andrew’s teachings on the laws surrounding self-defense and his analysis on several cases starting with Trayvon Martin.
You say there’s no gray area, others say there is. Thus, there is gray area in regards to whether there is gray area 😉
Mac, you convinced me. I agree that it was a bad shoot. As much as I sympathize with Drejka, and as glad as I am that McG is dead, the shooting wasn’t justifiable. Given the circumstances, and the outrageous provocation by McG, I’d like to see Drejka, barring unknown unknowns, get the absolute lightest sentence possible under law. I’d also like to see the GF prosecuted for instigating the fight, if it turns out she did, with a hate-crime enhancement if they can pin it on her.
Also, whether or not McG retreated to safety or not is irrelevant. He’s not the one who could get charged with manslaughter, and anyway, Florida has SYG, as you may have heard. It’s a matter of whether or not McG clearly withdrew from the fight, and whether or not that was clear to Drejka.
Right. I thought I made it clear that I referenced Duty to Retreat because it’s the only place I could find a legal definition of “retreat”, and that a Duty to Retreat doesn’t apply here.
I’m just trying to nail down the definition.
Fen,
IANAL, but I think it’s a matter of semantics – retreat v disengage.. The legal justification for use of deadly force ends the instant the threat ends. He just needs to signal that he’s disengaging; that he wants to end the fight. Stepping away, IMO, would signal that; it would at least hit the pause button. Add the fact that he did not wade in to finish him off when the shooter was down, and I have a hard time finding the imminent deadly force threat.
The duty to retreat (if any) is on the defender, but only if he uses deadly force; his failure to retreat doesn’t justify the other guy shooting him. So, was the shooter an innocent party? The GF parks in a handicap space; a legal violation that was, at worst, an inconvenience for the shooter, but certainly not an injury or threat to him. The shooter CHOSE to engage her. Didn’t he thereby surrender his innocence (he started it)? Can’t the argument be made that what followed was the result of the fight he started? Seen that way (and that is consistent with the video and facts that I know), the shooter starts a fight that the BF escalates but then disengages from after which he is shot and killed. In that view, at the time of the shooting the BF is the defender and has no duty to retreat. The shooter is the aggressor (the first fight had ended) and the shoot is bad.
The shooter’s argument with the GF was loud enough and long enough that other people commented on it and she had time to text. His body language is aggressive, his mouth opens wide like he is shouting, and his gestures (finger pointing) are abrupt and forceful. His claim of self defense may have ended before the BF ever arrived.
“The shooter CHOSE to engage her. Didn’t he thereby surrender his innocence (he started it)?”
The “He started it” has nothing to do with verbal ‘starting’. If we take your approach we can argue that both McG and his gf ‘started’ it by choosing to park illegally in the handicapped lot; they started this fight against the whole community waiting to see who has the guts to tell them anything. Thugs from the start…
No, starting it is who assaults first (by fist or other means). So McG started first with his violently strong shoving.
Thanks for the thoughtful response. I think what’s giving me pause is the initial blindside attack by the guy who got shot.
If he had instead confront the shooter face to face before shoving him, I’d be leaning towards calling the shooting unjustified. Instead, he was “tricky” in his initial physical attack, did not raise his hands in surrender, did not continue to retreat, but stopped within engagement range, ie. he had already demonstrated he could cover that distance in a split second. I think a reasonable person would have erred on the side of caution re his “incomplete” retreat if he hadn’t already demonstrated he was willing to use deceptive tactics.
I wish there was a better definition of “retreat”, because now I’m wondering how it could apply to me. And what if my attacker blinds me (throws dirt in my eyes) long enough that I don’t recognize he has stepped back a few paces?
But I agree with others that this is on the edge of justified vs unjustified. And as this thread demonstrates, reasonable people on both sides of this discussion are in disagreement. That’s a hung jury. So I’ll be surprised if he’s charged.
You can look up the jury instructions for justifiable use of force, if you like. But, in this case, as VaGentleman noted, McGlockton both disengaged, stop an attempt to attack Drejka as well as retreat, back up several steps. Both are clear signals that no attack is imminent. And, that is Drejka’s problem. Even with those signals, he chose to attack McGlockton with a deadly weapon and he killed him.
What you are doing is defining “retreat” [which is not really necessary, disengagement is the determining factor] as meaning running a great distance and hiding. However, simply moving out of attack range would be a retreat.
“McGlockton disengaged”
He did not disengage. Asserting it over and over again does not make it true.
1) he began to retreat but discontinued that retreat
2) he did not have his hands up
3) he remained in an engagement range he had just aptly demonstrated he could rush across in a split second, without warning
4) he a just demonstrated he uses deceptive tactics (surprise ambush)
A reasonable man would still consider him a threat.
For what it’s worth:
https://www.yahoo.com/gma/victims-girlfriend-says-florida-gunman-provoked-fatal-stand-095904222–abc-news-topstories.html
Seriously, when is her lawyer going to tell her to STFU, or maybe the lawyer has and she is either ignoring him or not capable of hearing the advice. Her 5 yo didn’t witness the shooting, he saw his dad after his dad had been shot outside. This is lie #3 on record which any decent defense lawyer can easily use to discredit her as a reliable witness/reporter (ignoring her likely bias since she has indicated plans to pursue it in a civil matter).
Also, the Sheriff was incorrect when he stated that no words were exchanged. He was not there. He should have stated that “neither of the two witnesses on the scene reported an exchange of words between the shooter and the shootee prior to the shot being fired.”
In response to Tom Swift’s points about casual violence being the norm in the black community, this falls into the explanation category and not the excuse category. Sadly, people nowadays confuse explanation for excuse, believing that the former carries the weight of the latter. I don’t care what your people do to each other on their time, but if they come over and do it to my people on our time, there is going to be a problem. The ghetto mindset might be an asset in the ghetto, but out in the real world, it becomes a liability that many fail to recognize.
BTW, did she get a ticket for being parked in the handicapped spot?
I don’t know if it’s reliable, but there’s a report that McG confronted Drejka in response to a tweet from the GF. If so, it could easily sink her possible civil suit, and even open her to criminal charges.
Actually, there were three known surviving witnesses to the attack and shooting[Drejka, McGlockton’s girlfriend and the other BM who ducked behind the parked car]. If they all state that no words were exchanged between McGlockton and Drejka, then I fail to see how you can claim that words, were, in fact, exchanged.
Things happened VERY fast here… in just a couple of seconds.
Shooter is talking to the driver of the vehicle who starts to get out of the car just as he is blindsided by a second party.
Shooter finds himself stunned, roughed up, and on the ground and facing two assailants.
There is no retreat with yourself on the ground and two able-bodied assailants standing over you, so “stand you ground” doesn’t come into play here. He couldn’t retreat effectively, even if he’d wanted to.
Shooter draws weapon and fires. As this happens, the “blindsider” turns, perhaps a reaction to seeing he’s about to be shot.
My $0.02 – Unless it becomes a political football bigger than the Skittleboy case, the shooter doesn’t get convicted.
“…the shooter doesn’t get convicted.”
No, he will not. I don’t know if he will be charged with a crime, I certainly wouldn’t charge him*, but a jury is not going to convict in a clear case of self defense, regardless of how the law gets twisted.
*I’m assuming there is not something substantial we don’t know about
That is an interesting explanation. And Drejka can certainly argue that in court. But, it is not what happened. McGlockton had retreated and his girlfriend ran to the other side of the car. So, it would be an uphill battle for Drejka. Now, he might be a sympathetic defendant and one, or more, jurors might hang the jury. But, I would not bet on an acquittal in this case.
“McGlockton had retreated”
Juror #5 doesn’t see a retreat. He sees McGlockton begin to retreat and then discontinue that retreat. Hands are not up. And he remains in the engagement area that he just aptly demonstrated he can rush across in a split second, without warning. And he just demonstrated he uses deceptive tactics (surprise ambush).
Juror #10 would like to see the legal definition of “retreat”
The girlfriend is moving out of his line of sight. Remember what happened last time he turned his back on one of them?
Yup. Basic wolfpack tactics of street fights.
Victim gets attacked, turns around, another pack mate nips him in the back, he turns, etc.
I’m just speculating here (as others have for the shooter), but I suspect NcGlockton stepped back and paused to assess whether one of his two companions could distract the victim long enough for him to rush in and disarm.
If I were a jury in the criminal case I’d vote ‘not guilty’ mainly by looking at the reaction of the male who followed the husband: The moment he saw the gun he immediately took off! The husband on the other hand did not. He even didn’t raise his hands to gesture ‘Don’t Shoot.’
Perhaps he was embarrassed to flee or raise his hands in front of his wife, after his strong showing off. If this is so his embarrassment caused him his life; and if his wife was not there he’d have acted differently and fled just like the other male. Therefore, it’s possible that the presence of his wife contributed to his death.
“… the male who followed the husband: The moment he saw the gun he immediately took off! The husband on the other hand did not.”
Good point. Defense can contrast both men, showing what an actual retreat looks like.
To be fair, the second guy, who I believe was the person who arrived while the argument was taking place and was likely the one who told the clerk, was not in “fight mode” as was McGlockton. He was free of any distractions and thus “booking” was a viable option for him, whereas McGlockton had both ante’d and raised and was fully invested in the hand, though not expecting Drejka to go “all in.”
I did find it amusing that a reporter decided to knock on Drejka’s door despite him having posted a sign that said “no comment” and “no trespassing, go back to the sidewalk” Seriously, was that reporter born with any common sense. “I’m going to knock on his door, what is the worst that could happen?”
The NY Post gets “stand your ground” wrong again.
One might wonder if they have an agenda, or are simply stupid?
https://nypost.com/2018/07/20/stand-your-ground-law-protects-shooter-in-deadly-fight-over-parking-space-sheriff/