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Law of Self Defense: Detective in “Handicap Parking Spot Shooting” Case Arrested

Law of Self Defense: Detective in “Handicap Parking Spot Shooting” Case Arrested

Dangers of being judged by strangers who may themselves be deeply flawed

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

This week’s “Case of the Week” involves some perhaps non-obvious risks and uncertainties you incur if you’re involved in a use-of-force event that you now have to legally justify, specifically the risk that the folks investigating and judging your conduct may themselves be profoundly flawed individuals.

Most of you will recall Michael Drejka, the Florida “handicap parking spot shooter,” about whom we’ve written extensively here at Legal Insurrection. Drejka shot and killed Markeis McGlockton after McGlockton shoved Drejka to the ground upon seeing Drejka chastising McGlockton’s girlfriend for unlawfully parking in a handicap parking spot.

A notable facet of this case is that the responsible Florida sheriff initially declined to arrest Drejka, on the very weak ground that he was prohibited from doing so because of Florida’s self-defense immunity laws, but that Drejka was nevertheless charged with manslaughter after submitting to an interview without benefit of counsel by a Detective George Moffett, who then swore out a criminal complaint on that manslaughter charge.

A member of the Law of Self Defense community alerted me to a news story by the web site Law Enforcement Today (and confirmed by other more recognizable news sites), reporting that Detective Moffett was arrested last week for showing up to a crime scene intoxicated.

And Moffett showed up at the crime scene not just a little intoxicated, either:

[A]fter [Moffett] exited his unmarked detective unit, deputies noticed signs of impairment.

Field deputies noticed the detective smelled like alcohol, had bloodshot eyes and was slurring his speech, the Sheriff’s Office said.

As a result, deputies began a DUI investigation in tandem with the shooting investigation. Moffett performed poorly in field sobriety tests

A breath test taken several hours later indicated a blood-alcohol level of about 0.130, half-again above the 0.08 limit for driving impaired. Naturally this means that Moffett’s actual blood alcohol level at the scene was substantially greater than this measurement.

It is noteworthy that Moffett drove himself to the scene, and was armed at the time.

It is also noteworthy that Moffett has previously been convicted of DUI.

Why mention this at all? Not to criticize police generally, or even Moffett specifically, but rather as a cautionary tale about the risks of placing your fate, literally potentially the rest of your life, in the hands of strangers who now have the authority to determine your future as a result of your engaging in a use-of-force event.

I know a lot of law enforcement officers, and almost without exception they are fine public servants. But I do mean almost without exception. The simple truth is that if you take any sizeable group of people of any description you’ll always find a few bad apples, and law enforcement is not immune to this truth of human nature.

Is there any way you can be certain the police investigating your use-of-force case won’t share the same poor judgment as Detective Moffett? No. You simply take your chances and hope for the best, with the rest of your life hanging in the balance. That’s not a great spot to be in.

The same flawed character risks apply even to judges, who are after all only imperfect humans, too. An example is Sol Wachtler, who when he was the Chief Justice of the highest court in New York State in the 1980s played a key role in what I consider the railroading of Bernie Goetz on murder charges. (Goetz would ultimately be acquitted of all use-of-force charges, and convicted only of violations of New York’s punitive gun laws.)

Only five years later Wachtler was sentenced to Federal prison after having pleaded guilty to threatening the kidnapping of the daughter of his estranged mistress. (Ironically, Wachtler would serve 13 months in prison, a full 5 months more than Geotz.)

Is there any way you can be certain the judge presiding over your use-of-force case won’t be similarly flawed? No.

The moment you engage in a use-of-force against another person, you’ve now subjected yourself to the judgment of other people—police, prosecutors, judges, jurors—who have the power to determine whether you spend the rest of your life in a cage living with unpleasant people. Almost all of those people will be honest and well-intentioned and interested solely in justice. Almost all of them.

But whether that’s the case or not is something that’s not within your control. You have no power whatever over whether the folks who are judging your future fall into the large majority of good folks—or the minority who demonstrate the poor judgment of driving to a crime scene armed and so badly impaired that their own colleagues feel compelled to arrest them at the scene, or of threatening to kidnap his mistresses’ daughter.

The risks of getting into a fight aren’t merely physical, folks, and they don’t arise only in the context of a courtroom. Don’t get into fights you don’t need to get into—make sure the risks are worth the stakes.

Remember: You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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Comments

So, because a detective was drinking while off-duty and was called back to duty status and arrived at the scene intoxicated, this affects the Drejka case how exactly?

Let me relate a little story about attorneys and drugs and alcohol. I personally investigated a traffic accident where a prominent defense attorney drove his Cadillac into the rear of a squad car, which was parked on the swale with its overhead lights on while the officer conducted a traffic stop, virtually right across the street from the local police station. The attorney was not only intoxicated but had a significant level of cocaine and cannabis in his bloodstream. This attorney was charged with DUI and unlawful blood alcohol levels, subsequently pled guilty, received a one year probationary sentence and had is law license suspended for three years. Ironically, the local Public defender immediately hired him as a paralegal and then as an Assistant Public Defender, when his license was reinstated. Of course, I could regale you with examples of attorneys who were arrested for serious charges of embezzling client’s funds, rape, homicide, etc. Just look at such outstanding attorneys as Michael Cohen.

So, is there any way that you can be sure that your defense attorney, or any attorney, is not seriously flawed? Or any attorney, for that matter?

The Sheriff in the Drejka case did decline to immediately arrest Drejka. This was, in fact the correct move, under state statute. His explanation for this was horribly flawed. But, this does not detract from the fact that it was the correct decision. When the investigation produced sufficient probable cause that the shooting did not meet standards for self defense, Drejka was arrested. The prosecutor agreed with that. The magistrate agreed with that. So, now Drejka gets to appeal his arrest in a trial.

    NGAREADER in reply to Mac45. | January 13, 2019 at 1:11 pm

    I don’t know if it will have any influence on the case but it shows a pattern of extremely poor judgement. Who knows?

      So, because a detective was drinking while off-duty and was called back to duty status and arrived at the scene intoxicated, this affects the Drejka case how exactly?

      It doesn’t; did you read the post before commenting?

        Mac45 in reply to Ulises. | January 13, 2019 at 1:50 pm

        The inference, in this article, is that actions of the investigator in the Drejka case, which ere totally unrelated to that case, somehow influenced the decision to prosecute. Otherwise, why even write the article?

        As to NGA’s assertion that this single incident indicates a “pattern of extremely poor judgement” is ridiculous. Based upon that criteria, anyone who has ever become intoxicated is a drunkard.

          KEYoder in reply to Mac45. | January 13, 2019 at 2:29 pm

          “This week’s “Case of the Week” involves some perhaps non-obvious risks and uncertainties you incur if you’re involved in a use-of-force event that you now have to legally justify, specifically the risk that the folks investigating and judging your conduct may themselves be profoundly flawed individuals.” [First sentence of article]

          The Drejka case is being used to illustrate THIS topic, NOT the decision to prosecute.

          Mac45 in reply to Mac45. | January 13, 2019 at 3:17 pm

          Good try KEY. However, if we accept your hypothesis, then the Drejka case indicates that it does not matter if the investigator commits DUI, as the decision to prosecute was the correct one. So, even if the person investigating your use of deadly force is deeply flawed, it apparently makes no difference.

          So, what was the point of the article?

          healthguyfsu in reply to Mac45. | January 13, 2019 at 3:55 pm

          I think you misread it.

          This particular article is not meant to imply direct legal bearing, but it is a great cautionary tale and something I had not considered when thinking about use of force hypotheticals should the situation arise.

          NGAREADER in reply to Mac45. | January 13, 2019 at 7:49 pm

          This is his 2nd DUI. He was 1.3 several hours after he was arrested meaning more like 1.8 at the time.
          Yes, getting 2 DUI’s when you are a sworn police officer shows at least bad judgement.
          What do you call it?

          Daryle in reply to Mac45. | January 14, 2019 at 4:43 pm

          The inference in this article is that someone with impaired judgement showed up to a crime scene armed with a gun and legal authority. Being impaired, he could have easily mistakenly, as a result of his alcohol impaired judgement, shot an armed civilian who had just defended themselves.

          The point that I take away from this is “The moment you engage in a use-of-force against another person, you’ve now subjected yourself to the judgment of other people”

          And those people may have alcohol impaired judgement.

          Mac45 in reply to Mac45. | January 14, 2019 at 8:54 pm

          *sigh* Let me explain how the criminal justice system, in the US, works.

          In order for you to be charged with a crime for shooting someone, the case has to be examined by at least three people. The first is the initial investigator. He, usually in concert with several other LEOs, gathers evidence and reaches a conclusion as to whether your actions were lawful. Even if the investigator makes a probable cause arrest, you are not formally charged until such time as the prosecutor accepts and files those charges with the court. These charges are then reviewed by a magistrate [a judge], before you are bound over for trial. So, it is unlikely that any single person involved in this process can have you erroneously charged. Now, it is possible that there can be a conspiracy to erroneously charge you. It happened to George Zimmerman. The initial State Attorney decided that the evidence supported the conclusion that Zimmerman had acted in lawful self defense. Then a political decision was made to charge him anyway. To do this an official document, the PC Affidavit was actually falsified. But, usually, the safeguards within the system will result in a reasonably accurate decision as to whether you violated the law. Most prosecutors will not file charges if they do not feel that they can get a conviction.

          Now, this was an off-duty detective who was called back into work to investigate a crime. As a follow-up investigator, it ie extremely unlikely that he was responding to a delayed incident or, at least, a scene which was already secured by LEOs. Considering that he had been drinking, he should not have responded. He should not have been driving. And he probably should not have been armed with a deadly weapon. But, other LEOs on scene recognized his condition. They detained him and he was eventually charged with DUI. It is safe to assume that he did not investigate the incident to which he responded.

    maxmillion in reply to Mac45. | January 13, 2019 at 2:30 pm

    It’s like guilt by association, but it’s innocence by association.

    Colonel Travis in reply to Mac45. | January 13, 2019 at 2:34 pm

    Branca wrote this:

    1.) To emphasize something he always tells readers: think, think, think, before you act and know the law, because you have no idea who will be working against you or if their motives are sound. If you’re ever in a self-defense shooting, you may think you’re in the right, and in theory you may even be in the right – but you aren’t the one who gathers the evidence and puts you on trial if it gets that far. You are at the mercy of flawed human beings who have the ability to screw up along the way.

    2) To give an example of a flawed human being who is part of a prominent self-defense case.

    3.) And finally, from the linked story:

    Predictably, John Trevena, one of Drejka’s attorneys, said he plans to raise the arrest at trial during cross examination.

    “His lack of credibility, I believe, is fatal to the state’s case,” Trevena said. “Was he drunk when he investigated the Drejka shooting?”

      Of course Drejka’s attorney is going to try to paint the detective as the central figure in the case and impeach him. The reason for that is because there is video evidence, which if used to argue the law, is going to go a long way to convicting Drejka.

      This was not a cut and dried self defense shooting. There is substantial evidence that it does not meet the statutory requirement for lawful self defense. Yet, no evidence exists that the detective was negligent, intoxicated or acted in bad faith, in the investigation. Even if he was any, or all, of thse things, independent evidence strongly supports the conclusion that Drejka’s actions, in shooting McGlockton, were illegal.

        Colonel Travis in reply to Mac45. | January 13, 2019 at 5:56 pm

        Now you’re wondering about trial strategy, which is a different subject.

          Your #3 brought up trial strategy, I didn’t.

          Look, Mr Branca brings up the very good point that police investigators. prosecutors and judges are not necessarily on your side. This is fine. But, his example, in the Drejkaa case was actually spurious, as there is no evidence that the detective did not perform his job perfectly.

The only thing that you can win in a gun fight is the right to walk away.

You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.

Excellent thought, one that I’m passing on to my gun-owning relatives.

The point is that the use of force will be judged by others, who may or may not agree based on a flawed character or circumstance. Calculate the risk of action or inaction, and be wary of presenting undue cause to color their assessment.

The irony is, the man shot was about as disabled as 99.999% of the people who use handicap placards. On this list of things I’m going to white-knight about, that one is down there with running over frogs on a dark spring evening.

“. . . Drejka was nevertheless charged with manslaughter after submitting to an interview without benefit of counsel by a Detective George Moffett, who then swore out a criminal complaint on that manslaughter charge.”

The following is one of the more entertaining and informative videos I found during law school on why a person should NOT agree to talk to a police investigator EVEN IF INNOCENT.

Enjoy.

https://www.youtube.com/watch?v=d-7o9xYp7eE

Look for the detective to get Furhman’ed.

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