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Manslaughter Charges Filed in Florida Handicap Parking Spot Shooting

Manslaughter Charges Filed in Florida Handicap Parking Spot Shooting

Michael Drejka held on $100,000 bail

https://player.vimeo.com/video/281013501

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.

[AFB: Update, just reading the charging document closely now, and see Drejka was charged under Florida Statute §775.087(1)), Florida’s so-called “10-20-Life” mandatory minimum sentencing law, the one that caught up Marissa Alexander. I’ll discuss the details of this in more detail in a future post, but in effect it means that if convicted under that provision of the law Drejka is looking at life in prison, even though charged “merely” with manslaughter rather than murder, because manslaughter is a first degree felony and this killing involved the use of a firearm.]

We previously covered this case immediately after it occurred here:

Law of Self Defense VIDEO: Just because it’s lawful to present the gun doesn’t mean it’s lawful to press the trigger

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 police 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

P.S. Our debunking of the “documentary” by Jay Z, “Rest in Power: The Trayvon Martin Story” is going gangbusters. If you’d like to access our in-depth critique of this thoroughly propagandistic “documentary,” and know the truth of the George Zimmerman trial, you can do so by clicking here.

Learn more about self-defense law from Attorney Andrew F. Branca and Law of Self Defense LLC by visiting the Law of Self Defense Patreon page for both free and paid-access content, and by viewing his free weekly Law of Self Defense Show.

[AFB: Updated with the felony information (charging document), thanks to commenter RodFC:]

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Comments

That’s because at his discretion Drejka can request a self-defense immunity hearing

This seems pretty useful. Why might Drejka choose to not request such a hearing?

    RodFC in reply to tom_swift. | August 13, 2018 at 3:34 pm

    The same reason that Zimmerman did not. The judge could rule against and then the chance would be gone to hold such a hearing in case of later civil litigation.

    Gunstar1 in reply to tom_swift. | August 13, 2018 at 5:16 pm

    It also might give away your argument. If you lay out all your proof of why it was lawful and the judge rules against you, you have just shown the prosecutor all your cards.

Outside Portland where could you find 6 people who will against self defense? Especially since the Sheriff has already announced it was. Smells political to me.

    RodFC in reply to floridaman. | August 13, 2018 at 3:50 pm

    Probably one reason they did not charge murder.
    It’s possible that they will find 6 people to convict the third or fourth time around. I doubt they will ever find twelve. ( Which is needed for murder.)

    guyjones in reply to floridaman. | August 13, 2018 at 4:00 pm

    Well, add L.A., San Francisco, Austin, New York, Washington, D.C., Atlanta, Detroit and Philadelphia, to your list of cities.

    This prosecution is pure politics — placating the mob. As with St. Trayvon Gandhi, the pacifist, the deceased in this case would still be alive, but for his ill-advised, willful, foolish and criminal decision to violently attack a complete stranger, without warning, and, without any scintilla of justification.

      Mac45 in reply to guyjones. | August 13, 2018 at 4:10 pm

      This is NOT a political prosecution. As Mr. Branca noted the is only SLIM chance that lawful self defense can be argued here. I have explained WHY this is not a strong self defense shooting ad nauseum, so I will refrain from doing so again. It will not become the responsibility of Mr Drejka to present a viable defense that his actions constitute lawful self defense. Good luck to him.

        Mac45 in reply to Mac45. | August 13, 2018 at 4:16 pm

        Correction: this should read: “It will now become the responsibility of Mr Drejka to present a viable defense that his actions constitute lawful self defense.”

          The Packetman in reply to Mac45. | August 13, 2018 at 4:47 pm

          And here I thought that the prosecutor had to prove Drejka guilty beyond a reasonable doubt … silly me.

          Paul in reply to Mac45. | August 13, 2018 at 5:01 pm

          And I thought from reading Mr. Branca’s article that the state would have to disprove self defense by presenting “…evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation…”

          Funny definition of “SLIM”

          Tom Servo in reply to Mac45. | August 13, 2018 at 5:33 pm

          And here I thought that the prosecutor had to prove Drejka guilty beyond a reasonable doubt … silly me.”

          Thanks to the video, all of us have seen the evidence that proves that Drejka killed the victim with a gunshot, and it is beyond any reasonable doubt to state that Drejka killed him.

          The question is, was it murder, or was it manslaughter, or should he be exempt from prosecution because of his claim of self defense?

          JusticeDelivered in reply to Mac45. | August 13, 2018 at 8:17 pm

          The decision to charge him is political. And, being charged, having to pay for a criminal attorney and perhaps having his insurance canceled as a result of Gov. Andrew Cuomo’s scheming, leading to financial ruin.

          Mac45 in reply to Mac45. | August 13, 2018 at 9:11 pm

          Here is why I say he has a SLIM chance of lawful self defense being effectively argued here.

          First shooting a person is a criminal act in Florida. There are some exceptions to that; legitimate accident without gross negligence and lawful self defense. And, Drejka has chosen to argue that he acted in lawful self defense.

          Second, the statute which authorized the use of deadly force in self defense [776.012(2)] only allows the use of deadly force, or the THREATENED use of deadly force, to prevent the imminent commission of a forcible felony or a physical attack which is likely to result in death or great bodily harm. There exists NO evidence that McGlockton was committing or about to commit a forcible felony. There is no clear evidence that McGlockton was about to attack Drejka, or that any attack was likely to result in death or great bodily harm. So, shooting him was not a lawful act, under the statute. In fact, as threatening to shoot him, which pointing a pistol at him constitutes, is not allowable, except under the same conditions necessary to authorize actually shooting him, it is probably a violation of law for Drejka to draw the pistol and point it at McGlockton, in a threatening manner. Though prosecutors would probably be willing to give Drejka a pass on making such a threatening gesture in reasonable defense.

          Barry in reply to Mac45. | August 13, 2018 at 11:11 pm

          “There is no clear evidence that McGlockton was about to attack Drejka, or that any attack was likely to result in death or great bodily harm.”

          I’m sorry Mac, but anyone who watches the video can see the violent attack that occurred prior to the shooting.

          And, ANY attack IS likely to result in death or great bodily harm.

          Mac45 in reply to Mac45. | August 14, 2018 at 11:18 am

          This is why defensive firearms carriers get themselves into trouble; they do not know the law.

          In Florida, and most other states, you can only use force to stop an imminent or ongoing physical attack. It is impossible to stop an attack which has already occurred and has been terminated. The law does not allow one to engage in a revenge attack.

          That McGlockton shoved Drejka and knocked him to the ground, has bearing on Drejka’s action, but, there is still NO clear evidence to support the reasonable belief that any further attack by McGlockton was imminent.

          Barry in reply to Mac45. | August 14, 2018 at 10:00 pm

          “It is impossible to stop an attack which has already occurred and has been terminated.”

          “Has been Terminated” is the question. There is nothing in that video that proves it had been terminated. A few seconds is all the shooter had to make the decision. After being violently attacked, with the attacker less than a second away from continuing the attack, he had every right and reason to use his weapon to terminate the possibility of further attack.

          Mac45 in reply to Mac45. | August 15, 2018 at 11:13 am

          Barry, I suggest that you watch the video again. McGlockton has backed-off [he actually retreated, but I do not want to get into arguing that at this point]. He is stationary. he is not making any movement toward Drejka. And, he has no visible distance weapon in his possession. So, the attack is NOT ongoing. It has been terminated. While it is possible that a second attack may be imminent, again, there is no discernible evidence to support such a claim.

          Under the law, force may only be used to prevent an imminent physical attack or to stop such an attack. In the absence of any evidence to support the conclusion that a physical attack is either in progress or imminent, one can not use force in self defense.

          Barry in reply to Mac45. | August 15, 2018 at 5:38 pm

          Mac, I watched it multiple times.

          The man was just knocked to the ground in a violent attack.

          You are dissecting it by parsing out the legalese and ultimately the legal system may rule that way.

          Were I on the jury and watched that assault and saw the very short time (seconds) that passed before the shot was fired, I would vote for acquittal. You can’t apply your standard of being trained to his normal human response to an attack.

          People that follow your logic will not need to worry about jail.

    Elzorro in reply to floridaman. | August 18, 2018 at 1:26 pm

    They got wind of Crump and Co. showing up. This is prolly one of ‘those’ cases.

A copy of the arrest warrant.
https://iontb.com/argument-over-handicapped-parking-space-ends-in-shooting-death-at-convenience-store-in-unincorporated-clearwater/

One thing that bothers me is the bias in the warrant. The Affiat describes the argument between Drejka and Jacobs and makes it sound like Drejka was foaming at the mouth. But we see the whole thing on video, and while there is an argument I’ve seen much worse arguments.

Drejka says that he could only see McGlocktons legs and that he shot when they jerked towards him. Remember the standard is not whether a reasonable man would determine the threat to be over, but whether a reasonable man could infer threat of bodily harm. Seems to me that fits.

In my CCW training, anything 21 feet away or less is considered inside the threat zone. The person that was shot was well inside that distance. Therefore, if I was on the jury, I would vote to acquit.

    Mac45 in reply to BigDaveLA. | August 13, 2018 at 4:14 pm

    Sorry, but the 21′ rule is irrelevant in this case. The statutory requirements for the use of deadly force in self defense simply do not exist here. McGlockton did not commit a violent felony, he was not armed with a deadly weapon and he was not making any threatening movements toward Drejka, at the time he was shot.

    I hate to say it, but some of the worst legal use of force advice come out of CWFL classes.

      tphillip in reply to Mac45. | August 13, 2018 at 4:37 pm

      “he was not armed with a deadly weapon”

      Fists can’t be considered deadly weapons? You should contact the FBI and tell them they’ve been getting the URC wrong for decades now. Who knew?

      “he was not making any threatening movements toward Drejka”

      Right. We’ll just ignore the violent action that was committed moments before he was shot. Can’t understand why someone would be in fear of their life from a violent, physically fit man in his twenties.

      Nope. McGlockton was as pure as the driven snow.

        Mac45 in reply to tphillip. | August 13, 2018 at 8:35 pm

        No, fists are not, in and of themselves a deadly weapon. FSS 790.01 has this definition of “weapon” ;

        “(13) “Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.”

        See the words hands, feet, fist, etc anywhere in that definition?

        Florida case law has refrained from classifying hands, feet or fists as weapons, and refuses to classify them as deadly weapons, for very good reasons.

        As to ignoring the violent action that occurred previous to the shooting, you better ignore it. Florida law does not allow you to use deadly force against some one unless except to PREVENT an IMMINENT attack, which is likely to result in dweath or great bodily harm. So, unless the person that you you shoot is actively attempting to attack you, you can not use force against him or her, in self defense.

        It is always much better to know, understand and operate within the law, rather than to try to defend your actions later. The incompetent boob defense does not go over too well in court.

          Barry in reply to Mac45. | August 13, 2018 at 11:14 pm

          “See the words hands, feet, fist, etc anywhere in that definition?”

          Sure, “…or other deadly weapon…”

          cucho in reply to Mac45. | August 14, 2018 at 12:54 am

          I’ll bang your head against the pavement repeatedly until I get tired, and we’ll see if you still think I’m not a threat.

          Mac45 in reply to Mac45. | August 14, 2018 at 11:20 am

          Barry, in Florida and most other states, hands are NOT considered deadly weapons. If they were then everyone who punched another person in the face would be charged with aggravated battery instead of simple battery. Hands are NOT considered deadly weapons.

          I do not understand why people can not understand this concept. It is incredibly simple.

          “Deadly weapon” and “deadly force” are not the same things. “Deadly weapons” are presumed capable of inflicting deadly force, but ANY OBJECT (INCLUDING FIRSTS) MAY INFLICT DEADLY FORCE depending on the manner of their use.

          If McGlockton had used a deadly weapon, deadly force would have been presumed. The fact that he didn’t use a deadly weapon, however, does NOT exclude the possibility that he was imminently about to inflict death OR serious bodily injury.

          Being “unarmed” does NOT mean “incapable of inflicting serious bodily injury.”

          –Andrew

          Barry in reply to Mac45. | August 14, 2018 at 10:07 pm

          “Barry, in Florida and most other states, hands are NOT considered deadly weapons.”

          They should be Mac.

          What are the “other deadly weapons”?

          I would suggest it is left open. A rock, or hands would qualify when a death results.

          I’m not always precise and the law may sometimes be precise, but countless numbers of human lives have ended by a beating.

        Mac45 in reply to tphillip. | August 15, 2018 at 11:26 am

        Barry,

        While any object can be used to inflict death or great bodily harm, the ease of inflicting these conditions along with the intended and general uses of an object largely determine whether an object is considered a “deadly weapon”. Fists and feet usually take multiple hits to achieve great bodily harm or death, though a single hit can produce these results. A hammer is much more likely to cause these conditions with a single strike. But, the general and intended uses of a hammer preclude it from being classified as a deadly weapon.

        Deadly force is legally defined as the force derived from the use of a “deadly weapon”, or the force which is likely to cause actual great bodily harm or death. So, the force of the hammer, when directed toward a human being could be considered deadly force and the hammer a deadly weapon, when used in that manner. In essence, a “tool” becomes a weapon if used as one and a “deadly weapon” if its use, in that manner, is LIKELY to cause great bodily harm or death.

        Hands and feet are NOT considered deadly weapons, or weapons at all. If they were, you could not put your hands in your pockets without violating laws against carrying concealed weapons.

          Barry in reply to Mac45. | August 15, 2018 at 5:49 pm

          Mac, I can kill a human being with a single blow from my hands (or foot).

          You can decide if that is deadly or not.

          I’d further guess that anyone that received the same training and killed someone in an unprovoked attack with their hands (or feet) will be charged with the “other deadly weapon”.

      and nobody has ever had skull damage/perm damage/death due to a boot stomp on the head….

        Mac45 in reply to dmacleo. | August 13, 2018 at 8:42 pm

        What boot stomp? where do you, or anyone else see McGlockton stomp on Drejka? Or even advance upon him once he displays the pistol? Not even Perry mason can get this guy off, except through the actions of a juror who refuses to follow the jury instructions.

        You know what this video looks like? It looks like Drejka executed McGlockton. Drejka draws his gun and point it at McGlockton. McGlockton backs off. Drejka waits for a couple of seconds and then shoots him. So, Drejka is going to have to convince a jury that he reasonably believ4ed that McGlockton was going to attack him, in order to evade conviction.

      mhefets in reply to Mac45. | August 19, 2018 at 12:25 am

      “McGlockton did not commit a violent felony” Really?!

      I watched the video many times. The force with which McGlockton used to push Drejka could easily ends his life if his head hit the car behind him or the ground.

      As an 49 years old Drejka most likely was still dizzy when he sat up and produce the gun. Hence it took him another second or so the focus his aim and shoot.

I would vote to acquit, without a moment’s hesitation. As a juror, I am not going to second-guess the state of mind and apprehension of a man who has just been violently attacked, without provocation or warning, by a complete stranger, and sent flying to the pavement.

This is purely a racial prosecution to appease the mob clamoring for his white scalp in this justified self-defense shooting–would not be any prosecution or even attention given if this was a white on white or black on black shooting !! ABJ

The bail is b.s. – he should have been released on his own recognizance.

casualobserver | August 13, 2018 at 4:47 pm

…..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.

None of us were there. But in the video the McGlockton sure seemed to be backing away when the gun was pulled. One push and a turn away will be a hard sell for eminent harm or death. It will boil down to Drejak’s word against others and the video the jury will see.

This will probably not go in his favor with a jury.

    The Packetman in reply to casualobserver. | August 13, 2018 at 4:59 pm

    …in the video the McGlockton sure seemed to be backing away …

    Note that Drejka wasn’t mounted to the convenience store wall; he was on the ground after having been shoved to the pavement.

      snapper451 in reply to The Packetman. | August 13, 2018 at 5:05 pm

      I live down here and have seen the video dozens of times on the local and national news. Two things, one, McGlockton was not backing away but raised his shoulders like he was about to kick the crap out of Drejka. Second, the 2nd guy moving toward him also looked like a threat but you see him scramble once the shots are fired. If he had not shot Drejka, the two of them would have likely beat the crap out of him and possibly killed him Sorry Drejka is in this position, sorry also McGlockton initiated the violence and died for doing it. Many lives affected and now we have to endure Benjamin Crump and Shakedown Al Sharpton coming down here.

        Mac45 in reply to snapper451. | August 13, 2018 at 8:44 pm

        What evidence do you have that the second man, who was following McGlockton was in any way involved? Or, are you just making this up?

          Char Char Binks in reply to Mac45. | August 14, 2018 at 2:40 pm

          He was involved. He’s the one who told on Drejka, and went out to watch, approaching Drejka closely until he saw the gun. That made him part of the attack.

          Mac45 in reply to Mac45. | August 15, 2018 at 11:29 am

          Really??? Part of the attack??? If you followed a person down a sidewalk and he shot someone, would that justify making you a principal, or even accessory to murder? The man following McGlockton down the sidewalk took NO action against Drejka nor did he take ANY action to support McGlockton;s attack on Drejka. You’re really reaching here.

          Char Char Binks in reply to Mac45. | August 15, 2018 at 5:10 pm

          IF he called McG out to fight Drejka, he at least helped instigate or provoke it. I didn’t say he was a principal or accessory to anything. IF Drejka saw him approaching, and he did continue approaching after the shove until the gun was drawn, D could reasonably have concluded that he was up against three adversaries. He probably knew he was up against at least two when Whatshername exited the car.

          Char Char Binks in reply to Mac45. | August 15, 2018 at 5:25 pm

          I just read the affidavit. Castelli apparently said he called McG out to the fight, although it’s now known if he thought it was going to be a fight, or if he provoked it, or if Drejka even saw him. Still, C was involved to at least a some extent. He involved himself, as some are fond of saying of Drejka.

      casualobserver in reply to The Packetman. | August 13, 2018 at 5:24 pm

      The presence of the gun began to neutralize the threat. Separation between the two grew. THEN he fires. I wish him luck but a jury isn’t likely to see it your way.

      MajorWood in reply to The Packetman. | August 14, 2018 at 10:58 am

      Exactly. What did Drekja see form “his perspective.” There is a famous photo of a baseball player tagging another as they run towards the photographer, except that the shadow (from the sun’s perspective above) shows a good foot of separation between the two players. The camera shows maximum movement perpendicular to the line between Drekja and McGlockton, while any movement on this axis between them would be minimized by the perspective.

      Drekja was a stupid ahole for even talking to the woman, but once he was shoved to the ground, it became a different matter.

If the prosecution has to disprove self-defense beyond a reasonable doubt, wouldn’t the fact that the police declined to arrest be a problem? Apparently they had some doubt.

When our modern legal doctrines and habits were cast in concrete we didn’t have video to show us what happened. Things are, in some cases, simpler now.

In this instance the video would show me, Mr. Imaginary Juror, all I really need to see—reasonable doubt. After that I have no discretion and no hard decisions to make; my vote is automatic.

He’ll be acquitted. Rightly so.

You can try to weasel around the right to self defense with parsing of the law, but the jurors will understand that a man just violently attacked fought back. He was right to do so.

    Olinser in reply to Barry. | August 13, 2018 at 6:37 pm

    I’m skeptical of an acquittal.

    But I would be shocked if he’s actually convicted.

    Milhouse in reply to Barry. | August 13, 2018 at 9:57 pm

    There is no right to “fight back”. There is only a right to defend oneself, which is not at all the same thing. What happened a minute ago is in the past; you have no right to retaliate. All that matters is what is likely to happen a minute from now. If you reasonably believe you are about to be attacked, you have the right to use force to prevent it. If you don’t then you don’t.

    But the belief must be reasonable; it does no good at all to show that you were terrified, if the jury finds that a reasonable person in your shoes, having experienced what you did, would not have believed himself to still be in danger.

    Gremlin1974 in reply to Barry. | August 14, 2018 at 2:01 am

    Yea, I learned a long time ago to never try and predict what a Jury might do, lol.

Good thing that Florida is a debtor-homestead state so that the shooters assets are protected from crumps inevitable civil lawsuit and judgement !! ABJ

    abujosh in reply to abujosh. | August 13, 2018 at 6:00 pm

    Shooter’s house, income, and assets, if any, are protected ABJ

    Milhouse in reply to abujosh. | August 13, 2018 at 10:05 pm

    Nope. 11 USC § 523(a)(6). “A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt […] for willful and malicious injury by the debtor to another entity or to the property of another entity.”

    iconotastic in reply to abujosh. | August 14, 2018 at 9:27 pm

    I recall that I read during the Zimmerman trial that if the shooting was determined to be in self defense then the shooter is immunized from civil lawsuits.

    If a jury decides Drejka is guilty then, given Florida law, he has a lot more problems than a civil lawsuit down the road from the likes of Crump. I’ll bet that defending himself will wipe out most, if not all, of his assets.

      Elzorro in reply to iconotastic. | August 18, 2018 at 2:11 pm

      if only she had stayed in the car and moved out of the hadicap space….none of this would have happened…sound familiar?

If I’m on the jury and I hear anything similar to: “I was viciously struck, I feared for my life, I thought I might lose consciousness, giving my attacker the ability to continue his attack which would lead to even more severe injury or even my death” I’m going to vote to acquit. Same if the defendant says “I thought my attacker was moving around the parked car to his right, to utilize it for cover/concealment. Because of the effects of his violent strike to my head, I felt losing sight of him would be tantamount to my death sentence.” There is no arguing against the defendants perception at the time of the event, unless his post incident statement changes somewhere along the line. He had his perception and he acted on it. If his actions, based on his perception, is reasonable and within the law (self defense/stand your ground), that’s an acquittal at best, a hung jury/mistrial at worst.

    Char Char Binks in reply to CKYoung. | August 14, 2018 at 2:46 pm

    Drejka was sitting on the pavement, at least temporarily unable to move, and highly vulnerable after a violent beating, entirely McG’s fault, with up to, as far as he knew, three people ready to attack him again, and the delay in shooting was only about 1.5 seconds.

    These facts seal it for me: Not guilty.

    Elzorro in reply to CKYoung. | August 18, 2018 at 2:14 pm

    My bet is after the election the state will offer a plea to lesser charges. The Sheriff of the county will hurt the states case.

Let’s see a small guy over 40 gets slam to the pavement probably would’ve smacked I’ve had to pavement included. Then two guys square up to finish beating him into a coma, or so it would appear after you’ve just been slammed to the ground by a complete stranger you had no prior engagement with at all. It is always best to end of such conflict without any violence, but in this case the burden of the results is upon the person initiating the violence.

There is a primary guilty party here, and that party is McGlockton.

    Mac45 in reply to beagleEar. | August 14, 2018 at 11:29 am

    I fail to understand your point.

    McGlockton clearly committed a simple assault on Drejka, by shoving him. If Drejka had simply called police, McGlockton would have most likely been charged with that crime and Drejka would not be in jail. But, that did not happen. After being shoved, producing a firearm and causing McGlockton to back-off, Drejka then shot him. This is a separate action and has to be justified by law. At this point there does not seem to be sufficient legal justification for Drejka’s action.

      When Not To Shoot in reply to Mac45. | August 14, 2018 at 3:04 pm

      Everyone seems to be forgetting what led to the shove to begin with. McGlockton saw Drejka threatening his very young children and their mother, very loudly (albeit only verbally). Who’s to say McGlockton wasn’t just trying to get Drejka away from his kids like a bear protecting its cubs? That shove just didn’t come out of the blue. Drejka didn’t have to get transported to the hospital after he was pushed down. No EMT’s needed to be called for him.

      I’m going with Mac on this one.

      paracelsus in reply to Mac45. | August 14, 2018 at 4:37 pm

      When seconds count, the police are only minutes away.

      Elzorro in reply to Mac45. | August 18, 2018 at 2:09 pm

      It depends.

      When Not To Shoot in reply to Mac45. | August 24, 2018 at 5:21 pm

      Looks like Drejka’s bail reduction was denied because of the previous brandishing of a gun allegations and threats to other motorists and/or potential flight risk.

      At least he’ll go to trial, which is a good thing. I’d think with all the hoopla on the SYG issues the first trial might very well deadlock and there may be a second. As I see it, McGlockton had the motive and the means to attack Drejka (nut job confronting wife and kids, fists) but because Drejka fired too soon before the deadly weapons (fists) were in range the State has a valid argument on the manslaughter.

      So let’s see what happens at trial, and possibly the second.

Ahh. No editing possible, Obviously, that should have read “would have smacked his head to the pavement“ etc

Update added to post, just reading the charging document closely now, and see Drejka was charged under Florida Statute §775.087(1), Florida’s so-called “10-20-Life” mandatory minimum sentencing law, the one that caught up Marissa Alexander. I’ll discuss the details of this in more detail in a future post, but in effect it means that if convicted under that provision of the law Drejka is looking at life in prison, even though charged “merely” with manslaughter rather than murder, because manslaughter is a first degree felony and this killing involved the use of a firearm.

–Andrew

http://www.lawofselfdefense.com/patreon

Looks like manslaughter to me.

There is one thing that really bothers me that seems to be going by the wayside.

This guy sees the initial argument goes in. Doesn’t call the police or tell the store owner to call the police. Then he goes running out of store following the guy looking like he is anxious to join in until he sees the gun.

Seems to me like he wanted to create some sort of incident ( and gotten more then he expected ). Why?

    healthguyfsu in reply to RodFC. | August 13, 2018 at 10:55 pm

    Schoolyard mentality of watching the fight IMO. My pure speculation was that he was watching from the doorway then was heading out to break it up after the shove and before the gun was drawn. Court will def. clarify that though if there is any relationship between McG and man #2.

      MajorWood in reply to healthguyfsu. | August 14, 2018 at 10:48 am

      I believe man# 2 was the guy who arrived during the argument and told the store keeper that it was going on. He and a woman park in one of the 4 open parking spots NOT reserved for the handicapped.

      The best part of this whole incident is my realization that I don’t think or act like any of the involved parties, which is a great thing IMHO.

Looks like both of these a-holes might end up with their just deserts in the end.

The video is fuzzy and I wonder if a smart defense attorney would argue that his client was “threatened” due to the fact that Mr. McGlokton moves his legs towards him and thus it justifies his client using his firearm. The video is going to be the key and like the Zapruder film of JFK. I suspect the jury will look at it frame by frame to determine their verdict. Good luck with that.

mister naturel | August 14, 2018 at 7:50 am

Dear Mr. Branca,
If it’s not too much bother, could you comment on the charges filed by the Queens DA regarding the following recent assault of and subsequent death in the following article?
NEW YORK —
Police have arrested a Wake Forest University assistant basketball coach following a deadly punch on the streets of New York.

Jamill Jones, 35, an assistant for the Demon Deacons, turned himself in to police Thursday afternoon. He’s charged with third-degree assault but those charges will likely be upgraded.

Police said he punched out 35-year-old Sandor Szabo of Boca Raton, Fla., last weekend about 1:15 a.m. on 29th Street in Long Island City.

Szabo, who was once a Raleigh resident, was in New York City for a wedding and was apparently knocking on a car window because he thought it was his Uber.

Police said Jones got out and punched Szabo. He fell to the ground, hit his head and later died.

A person familiar with the investigation told The Associated Press that Szabo may have been drunkenly banging on car windows before Jones allegedly confronted him. The person spoke on the condition of anonymity because the person was not allowed to speak publicly.

The coach got out, followed Szabo to the sidewalk, clocked him and sped off, police said. Szabo never regained consciousness and was taken off life support on Tuesday.

The Wake Forest athletics office told ABC that “we have just been made aware of this matter and we are gathering information. We will make a further statement after we learn more about the matter.”

Jones, of Kernersville, was arraigned Thursday evening and was released on his own recognizance. Jones was ordered to return to court on Oct. 2.

Sandor Szabo’s family has yet to speak publicly about his death; except to tell the New York Daily News on Monday that “Sandor was the most loving and kind individual anyone could have as a friend.”

Szabo’s boss at What if Media said the marketing firm is heartbroken about his death.

“Sandor’s an amazing guy,” What If Media CEO Josh Gillon said. “He’s just an upbeat, happy, good guy. Always had a positive attitude and smile, trying to help out any way he can with our business.”

Before setting off for Florida, Szabo lived in Raleigh, N.C. He graduated from DeVry University and volunteered for Making Magic Alliance, a Raleigh-based non-profit that provides summer camp scholarships to underprivileged children.

“Mr. Szabo has been an integral part of our team beginning with his participation in the City of Raleigh Bikefest,” Making Magic Alliance wrote in an endorsement of Szabo on social media. “He has been a reliable and dedicated volunteer to our cause.”

Szabo, who lived in Boca Raton with his brother, always had a bright smile and shared a love of fishing, cooking and family, the company said.

Jones joined the Demon Deacons staff in May 2017 after coaching at Central Florida, where he served as an assistant to head coach Johnny Dawkins, a former Duke star.

He also coached at Virginia Commonwealth and at Florida Gulf Coast, where he was on the staff of Joe Dooley, now the coach at East Carolina.

Wake Forest head coach Danny Manning said at the time of Jones’ hiring that he was a “well-respected bright mind” in the coaching world and brought “new blood” and “new perspectives” to Wake Forest.

Jones, a Philadelphia native, played basketball at Arkansas Tech and North Platte Community College in Nebraska.

The only thing I’m sure of in this whole mess is that McGlockton won’t be shoving anyone from behind any more.

    MajorWood in reply to aka Hoss. | August 14, 2018 at 10:42 am

    And sadly, we can’t be sure that she won’t park in a handicapped spot again. I suspect the heated argument arose because she was likely adamant about being entitled to park where ever she damn pleased, because Obama said she could.

    BTW, has she been ticketed? I’m sure one of the 96 po po standing around could have found the time.

I think the shooting was totally legal. Why all the fuss?

    Char Char Binks in reply to gourdhead. | August 15, 2018 at 1:11 pm

    Race. That the prosecution is claiming Drejka shot from 10′ to 15′ away, and probably 12′, shows that they feel the need to lie to win, something they’re perfectly willing to do.

      A good defense attorney is going to show the attacker was one heartbeat away…

      One heartbeat.

        Elzorro in reply to Barry. | August 18, 2018 at 2:20 pm

        Many thugs will do a fake mowe away then turn and attack to lull the victim in to a vulnerable position. This is a fact to consider here.

      MajorWood in reply to Char Char Binks. | August 15, 2018 at 8:27 pm

      Well, if they claim 12 ft, then one simply needs to rotate McGlockton’s body by 90 degrees to show that he is about 12 feet tall. The thing with the video is that you can’t just use the pieces that are favorable to your argument. I’ll be curious to see which party seeks to introduce it as evidence, as it, to me, contains images which can weaken either case.

If I was the shooter’s Attorney, this is the part of the statute I would be hammering:

“Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion”

That two second time frame, while Drejka is reeling from McGlocktion’s assault, doesn’t make his lack of reason “clear and convincing.

If I’m the State, I’m arguing that the two second time frame is plenty of time for Drejka to recover from being shoved, and the shot was more revenge than self defense.

Hung jury.

    Was Drejka “reeling” from being shoved to the ground? He had the presence of mind to draw his pistol, immediately, and threaten McGlockton with it. Then he waited several seconds while McGlockton backed-off and stood still before he shot him. If Drejka is going to attempt to convince a jury that he was “reeling”, during that time frame, and did not know what he was doing, he better be clear and convincing.

      Gremlin1974 in reply to Mac45. | August 14, 2018 at 12:18 pm

      I think we are getting our burdens of proof confused. “Clear and Convincing” would be used in a Self Defense Immunity Hearing, which is usually before a Judge not a Jury, I believe.

      The standard of proof for the Jury would be “beyond a reasonable doubt”.

      So for the Immunity Hearing he would have to convince a judge that there is Clear and Convincing evidence that he was lawfully defending himself.

      At trial the prosecution would have to convince a Jury that he wasn’t lawfully defending himself and it was manslaughter, Beyond a reasonable doubt.

        You have the statutory burden of proof in an immunity hearing backwards. Florida state law now requires that the state prove, through clear and convincing evidence, that lawful self defense does not exist in this case.

        However, there have been two circuit courts which have ruled that this statute represents an unconstitutional infringement upon the judicial branch by the legislative branch. The argument being that the courts, under the Florida Constitution, have the sole authority to set burden of proof standards in criminal cases and in pretrial hearings, not the state legislature.

The shooter is just a pawn in a greater power play. He’s like a mouse in a cat’s paw, to be toyed with until the cat tires of the game.

I have to say, this appears to be a marginal shoot at best. You have to have a reasonable fear of death or GBH and it must be imminent. Shooting an unarmed guy is already a strike against that fear. This assault is not as clear cut as the Trayvon Martin case. Drejka was not being pounded into the ground like Zimmerman was. Zimmerman’s fear was clearly reasonable. Drejka just got pushed down.

Second problem is imminence. Zimmerman shot during an ongoing attack. McGlockton showed no sign of continuing his attack at the time he was shot. If McGlockton started moving back toward Drejka, he’d have a much better case for self defense. But Drejka took so long to get out his gun and take time to aim, that it blows his entire justification.

McGlickton was clearly wrong to attack him but that’s not a factor in whether Drejka’s use of deadly force was justified. I predict he will be convicted due to failing two of the five requirements for self-defense.

The worst part is that the entire kerfuffle is due to some arrogant woman (we’ve all met this princess) with a hair-trigger temper who wants what she wants when she wants it despite any inconvenience to anybody else, particularly when she’s in the wrong.
Her reasoning and disregard for the law is precisely the same found with any two-year-old and if somebody doesn’t “lay down the law” she’ll only continue to disregard it moreso in the future.

As we all learned in law school: “hard cases make bad law” !! ABJ

And as we were taught in medical school, “desperate diseases require desperate remedies.” Although, my favorite was from a mentor who stated that “all miracle cures begin with a misdiagnosis.”

So, let’s assume for a moment that D was subjectively reasonable (SR) in his shooting of McG as to behaving with all the required elements necessary to establish that he had an honest, genuinely held belief as to Innocence, Imminence, Proportionality and Reasonableness (Avoidance was off the table because of his position on the ground). If that assumption has merit, it means D would have satisfied ONE of the prongs necessary to establish the justification of his stopping McG’s attack.

BUT, SR is insufficient on its own merits to establish justification for D’s response to McG’s attack, and e.g., in PA, a defendant’s behavior in the use of force founded upon a Subjectively Reasonable belief of Imminent danger of death or GBH can form the basis for a claim of Imperfect Self-Defense. However, if SR is present but Objective Reasonableness (OR) is NOT, that can support then a charge of Voluntary Manslaughter (and Manslaughter appears to be what in fact has been charged here.)

But, D’s response must also pass muster on the Objective Reasonableness prong, and that prong is in the hands of the Reasonable Juror. Said reasonable juror (a legal fiction, btw, but I digress) will be charged with evaluating D’s behavior from the perspective of being in the same position as was D at the time at which D used the force he did. The reasonable juror is not perfect, however, and that means that his or her understanding of what took place can be customized as to those conditions as experienced and perceived by D within the context of D’s ultimately using deadly force.

Hence, D’s understanding of his perceptions at the time of his use of force become crucial, and, to the extent to which that is true, it then becomes a question as to how to get into evidence that perceptual information such that the reasonable juror can understand D’s perceptions within the totality of the circumstances as D perceived them at the time of his use of force. IOW, the defense will have the task of “customizing the reasonable person” standard by educating the reasonable juror as to the perceptual distortions that are reportedly common amongst person’s involved in deadly force events.

Getting that information as D’s perceptual field, as it were, at the time of the shooting can be introduced by: D’s direct testimony (self-serving though it will be); by a firearms trainer who directly taught D about perceptual distortions, and has the records to prove it; or by expert testimony offered by someone with credentials that satisfy the Court. My guess is that it will be the latter approach that D uses and, if so, the issues as to whether or not: D’s experience was “all of a one,” i.e., from the onset of his provocative (albeit) verbal behavior toward the woman in the handicap space, blending into the arrival and forceful, physical upper extremity impact by McG against D, causing his falling to the ground; his perceptions as to man #2 (shades of the OKC bombing), whether and what he saw as to McG’s legs leading D to perceive that McG was advancing, to his decision to use deadly force. Essentially, D wants the “reasonable juror” to share the perceptual and subsequent cognitive distortions that D experienced so that the “totality of the circumstances.” And that has to happen in such a way so that it obviates the tendency for such explanations to be thought of as “an excuse.”

Sadly for D, he has already given evidence against himself in the walk-through with investigators, although their use of a fabricated physical environment in which to conduct it – 3D scanner notwithstanding – will weigh against them, especially when D’s defense pulls in an expert to counter their findings. Goodness knows what other incriminating statements he’s given.

    Char Char Binks in reply to Marcus. | August 15, 2018 at 5:45 pm

    Drejka learned nothing from the mistakes of others (Zimmerman, Gasser, Scarsella, etc.). “Say little” as Andrew says, or if a little leads to too much, say nothing. Certainly don’t do a walk-through, and do your blabbing to a mouthpiece.

    Elzorro in reply to Marcus. | August 18, 2018 at 1:32 pm

    Did they use the 3D scanner on the scene? I saw a demonstration of it in Pinellas. Awesome tool. There is some controversy about it not being used in all cases due to cost because it is so good.

      Char Char Binks in reply to Elzorro. | August 18, 2018 at 8:38 pm

      No, they used the 3D scanner in a room at the police station. They had to to do it far from the scene of the shooting in order to get the desired results that are so far from the truth.

    Elzorro in reply to Marcus. | August 18, 2018 at 1:34 pm

    All statements a defendant gives to police are incriminating. Never talk to them without a lawyer…NEVER!

    Elzorro in reply to Marcus. | August 18, 2018 at 1:54 pm

    I am wondering about the affidavit. Was the shooter on the ground to the victims left or right side? Is the description of the bullet wound from the perspective of the shooter or the victim.

Char Char Binks | August 15, 2018 at 10:37 am

Was Drejka 15 feet from McG, or 15 social justice feet?

There is a specious among us to call it jist suxs

Is Kelleys statement in the capias admissible evidence? If so how?

Noting he was shot in the left side. Bullet track upward left to right. He was not turning to go in the store when shot was fired? If you turn from left to right your knee would move tward defendant? There are holes in this affidavit.

    Char Char Binks in reply to Elzorro. | August 18, 2018 at 3:21 pm

    You make a good point. Even if he was turning to leave, it would have looked like him moving towards Drejka. That makes it subjectively and objectively reasonable for D to think he was still under attack.

    MajorWood in reply to Elzorro. | August 19, 2018 at 2:59 pm

    I have only found “the family reports that he was shot in the side.” How long until an official autopsy result is released? I am suspicious that it is being withheld, which suggests to me that it might allow people to form opinions contrary to the position of the prosecutor’s office.

    FWIW, squaring up is the least “offensive” position to take. One “retreats” straight backwards. Moving forward is always done with the body at an angle, so if McGlockton were shot in the left side, he may have been perceived by Drekja as being in a position to move forward.

The Police did not initially see evidence to charge him. The caoias was written after Crump and Co. showed up. Possibly DOJ community relations as well. Tamping it down is the game. The Sherrif will be a defense witness I bet. Need more real evidence. I already see big holes in the states case for the defense to go after. Wonder if he has had a bond reduction hearing yet?

Char Char Binks | August 18, 2018 at 3:18 pm

He turned a little bit, possibly up to an eighth turn. That’s not what I would call retreating or disengaging.

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