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:]