VERDICT: Michael Drejka Guilty of Manslaughter
Handicap parking spot shooter looking at 25 to life
Last night “handicap parking spot shooter” Michael Drejka was found guilty of manslaughter, as charged, for the shooting death of Markeis McGlockton. The verdict was returned quickly last night, after the jury had deliberated only a few hours.
Drejka shot and killed McGlockton after McGlockton violently shoved Drejka to the ground in a convenience store parking lot. When shoved, Drejka had been verbally chastising McGlockton’s girlfriend for having unlawfully parked in a handicap parking spot.
As captured by surveillance video, once on the ground Drejka drew a pistol and pointed it at McGlockton, who remained standing over Drejka. Seeing the gun, McGlockton took several steps back and appeared to begin to turn away from Drejka. It was at this point that Drejka fired the single fatal shot. There was roughly a two-second interval between the presentation by Drejka of his gun and the firing of the fatal shot.
You can view that video here:
The case immediately became something of a media circus when the local sheriff mistakenly decided that Florida’s self-defense immunity law, §776.032, prohibited him from arresting Drejka for the killing. (I addressed this at length here: Law of Self Defense: VIDEO: Shove-Shoot Case Sheriff’s Statement.) Nevertheless, local prosecutors soon brought a charge of manslaughter against Drejka, and Drejka was found guilty of that charge by a Florida jury late last night.
Although sentencing isn’t scheduled until October 10, there seems little ambiguity in what that sentence is likely to be. Florida’s “10-20-Life” firearms sentencing statute, §775.087, mandates a 25-year-to-life sentence for a crime committed with a gun in which the gun is used to shoot and kill a victim. Drejka turned 49 earlier this month, so he would be 74 years of age before there is a possibility of his release from prison.
Drejka’s legal defense to the charge of manslaughter was, of course, self-defense. As such the only real legal issue in the case was whether, at the moment Drejka fired the fatal shot, he had a reasonable belief that McGlockton presented an imminent deadly force threat (meaning a threat reasonably capable of inflicting death or serious bodily injury).
Note that this is a different question than whether Drejka was justified in presenting his gun in the first place. It’s quite possible for Drejka to have been legally justified in presenting the gun without being legally justified in firing the shot. I addressed this issue at length in this blog post the day after the shooting occurred: Law of Self Defense VIDEO: Just because it’s lawful to present the gun doesn’t mean it’s lawful to press the trigger (7/20/18)
In evaluating whether Drejka reasonably perceived an imminent deadly force threat from McGlockton at the time he fired the shot, it’s important to differentiate between facts and claims that are relevant to that question and those that are not. Frankly, it seemed to me in my quick review of the trial testimony and argument that there was an excessive emphasis on irrelevant matters.
To start, even the video itself is not decisive on the question of whether Drejka was seeing what the video camera was seeing, if only because of differences in position and angle. Also, the camera had not just been thrown violently to the ground, a physical experience that can affect perception. The reasonableness of Drejka’s perception of a threat is properly judged in the context of a person in his circumstances—that is, was it the reasonable perception of a person who had just been violently thrown to the ground?
Related, it doesn’t matter if McGlockton actually presented a deadly force threat to Drejka. Rather, it only matters if Drejka reasonably perceived such a threat.
The prosecution made much of the fact that McGlockton was, in effect, killed for trying to protect his girlfriend and children. Really, it doesn’t matter why McGlockton shoved Drejka. It is irrelevant whether McGlockton’s motivation for shoving Drejka was good (e.g., he was protecting his girlfriend and children) or bad (e.g., he was going to teach this obnoxious stranger a lesson he wouldn’t soon forget!), so long as McGlockton’s use of force was unlawful (which it clearly was). All that matters is whether Drejka could reasonably have perceived that he remained in imminent danger of a deadly force attack at the moment he fired the shot.
Conversely, much was made by the defense in this case of the fact that, apparently, McGlockton had relatively high levels of illegal drugs in his system at time. Frankly, this is also irrelevant under the facts of the case. McGlockton being intoxicated could be relevant if there was some dispute as to whether it was McGlockton or Drejka who was the initial physical aggressor in this case or if the drugs involved tended to induce violent behavior, but that issue was not in dispute. The video clearly shows that it was McGlockton who was the initial physical aggressor.
I’ve already mentioned that the reasonableness of Drejka’s perception of the threat must be assessed in the context of a person in his circumstances, specifically that of a person who has just been violently thrown to the ground. If being subject to that physical attack led him to make imperfect use-of-force decisions, the responsibility for those errors is not on Drejka, but on McGlockton who subjected Drejka to that force.
Unfortunately for the defense, even my quick review of the testimony from the state’s witnesses on the scene shortly after the shooting occurred undercut any claim that the impact of McGlockton’s attack had degraded Drejka’s ability to make sound use-of decisions.
Drejka complained of no meaningful injury at the time that could have reasonably affected decision making. There was, for example, no evidence of Drejka having struck his head on the ground as a result of being shoved there, there were no complaints by Drejka of being disoriented in any manner, Drejka never requested any meaningful medical attention, and so forth. So, while one might suppose that being knocked violently to the ground could readily cause imperfect use-of-force decision making, there appeared little evidence supporting such an inference, and considerable evidence lacking.
Absent such disorientation, it would be expected that Drejka’s perception of McGlockton’s conduct after presentation of the gun would accurately reflect what the surveillance camera appeared to capture—McGlockton realizing that he’d brought his fists to a gunfight, deciding that discretion was the better part of valor, and backing away from the fight.
This case is an excellent example of how tiny changes in the fact pattern could lead to drastically different legal outcomes. If McGlockton had made any apparent movement consistent with re-engaging Drejka, Drejka’s perception of an imminent attack would likely have been unquestionably reasonable. Even a mere shift of McGlockton’s body weight toward, rather than away from, Drejka might have been sufficient. Such evidence was not in the case, however.
Also extremely unhelpful to Drejka was his post-event interrogation by police, to which he voluntarily consented, without legal counsel present. In that interrogation a happily compliant Drejka, believing he’s just helping the police understand why his shooting of McGlockton was no problem, hardly an inconvenience, as the internet meme puts it, agrees to conduct a re-enactment of the shooting.
It goes without saying that any re-enactment in an enclosed space is going to be an imperfect reflection of what happened out in an open parking lot, and the differences between the two in this case were not advantageous to Drejka. I covered this interrogation at some length, along with video of the interrogation itself, here: Examining the Michael Drejka (Handicap Spot) Interrogation (10/28/18)
(Not relevant to Drejka’s guilt, but a useful cautionary tale, is the fact that one of the police officers who conducted this interrogation would later be arrested for arriving at a crime scene in his official vehicle while driving intoxicated: The Risks of Being Judged By Strangers.)
There may be circumstances in which it is prudent to speak briefly with police responding to the scene of your self-defense event, although the default position should always be to simply request legal counsel (and medical attention, if appropriate). There is never, however, any good reason to be speaking at length to anyone about the event without first consulting with legal counsel, and there is never, ever, ever any good reason to voluntarily engage with professional interrogators without your legal counsel actually present (if then).
Drejka’s past conduct involving claims that he had allegedly threatened strangers with shooting, under circumstances in which shooting would clearly have not been lawful, was also extremely damaging to his narrative of innocence. It created the impression (perhaps correctly) of a hothead who was quick to threaten to go to the gun when doing so was unlawful and unnecessary. State prosecutors presented at least two witnesses who testified to this effect, and the testimony was of a sort not readily subject to effective impeachment by the defense.
OK, folks, I may have more to say on this case later, but I’m short on time today, so this will have to wrap things up for this post. Go to it in the comments.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program
[Featured image is screen capture from video of verdict being read in court.]
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Comments
Everyone loses again. Happens pretty often.
Looks like society wins. A drug-addled bully got taken out ( no more dysfunctional breeding from him), and an irresponsible gun owner is taken off the street (and won’t be eligible to lawfully possess a gun if he lives long enough to be released from prison).
An admittedly drug-influenced father is shot dead. Was he going to win father of the year? No, but he’s still dead and his kids have no father.
A person who probably didn’t go out thinking he would shoot someone that day will spend 25 years or more in prison because of a split second heat of the moment bad decision.
I’d say a lot of people lost, and I don’t think that society won because of it.
Any sort of regular nondestructive fatherly presence in a boy’s life is markedly better than none, as we see again and again with young fatherless men.
Empirically, McGlockton proved himself destructive.
Addiction is not a sign of inadequate moral fiber.
Dr. Lonny Shavelson found that 70% of female heroin addicts were sexually abused in childhood.
Post USA Civil War alcoholism was called “the soldiers disease”
Addiction is a symptom of PTSD. Look it up.
Andrew, thank you for your post. It’s very informative and interesting (as all your posts are).
Very true. Greatly appreciate Andrew’s analysis on this.
Don’t talk to the Police.
https://www.youtube.com/watch?v=i8z7NC5sgik
Here’s why.
“It’s quite possible for Drejka to have been legally justified in presenting the gun without being legally justified in firing the shot.”
It seems to be the prevailing “wisdom” among firearms trainers that you only present your gun if you intend to shoot, which gets translated into “I’ve drawn my gun so I must shoot.”
It should be more clearly stated don’t draw your weapon unless you are willing to shoot.
You don’t even have a need to own a weapon unless you are willing (in some circumstance) to shoot. How does your statement differ from this one?
Drawing the weapon should mean you’re well along the continuum toward shooting; the water is starting to bubble and is almost boiling. Because as we read yesterday, just drawing it is generally aggravated assault, and that can get you 10 or more years.
The penalty here for manslaughter seemed higher than I would have expected. Is 25 years minimum typical for manslaughter?
No. It is driven by Florida statute. Manslaughter charges are typically far less than that but gun involvement generally increase the penalty.
Intend to shoot implies that you will shoot.
Willing to shoot implies more discernment.
Also, it’s not always illegal to brandish a gun as just brandishing is a legal form of self defense if it thwarts an attack. That’s what Drejka did initially, and as Andrew said, that may not have been illegal. Illegally brandishing a gun is 10 years. The guy who carjacked me at gunpoint in Florida for example got 10 for it.
Actually, in Florida, threatening to used deadly force, pointing a gun at a person, is equivalent to actually using deadly force in self defense [FSS 776.012]. That was changed about 5 years ago. So, Drejka was technically in violation of the law, when he point his pistol at McGlockton. However, given the fact that Drejka had been violently shoved, was now on the ground and McGlockton was stand over him, he could most likely have justified that action.
Other state allow the display of a deadly weapon, even in a threatening manner, for self defense in non-deadly force situations. You have to know the laws in the area in which you are present at the time.
Over the last week or so, several things along these lines. First, there was a (I believe) MI case where the distinction was made between threatening with a firearm, and shooting someone with it. The former can be non deadly force, and as such a valid self defense response to someone using non deadly force against you. And last week, Eugene Volokh (at his VC at Reason,com) had an article along the same lines.
Here is the recent post by EV I mentioned: Threatening with a Gun vs. Shooting at Someone
There are different legal standards for the two actions, the Michigan Court of Appeals correctly concludes (in the Siwatu-Salama Ra case).
I’ve gone through training, and that was not what I was taught, even by implcation. I was taught not to draw unless I was willing to use it. In fact, I was directly told the opposite of what you suggest: that drawing and shooting were obviously related because you can’t do the latter until you’ve done the former, but they are still two separate decisions.
Great analysis and insights, Andrew, as always — thank you for that.
How do you think the Florida movie theater “popcorn” shooting trial might play out, in light of this verdict? The shooter in that case had much weaker grounds to claim self-defense, him having merely been hit in the head with a thrown bag of popcorn.
If I had been on this jury, the defendant would have walked. I think it’s unreasonable to demand a “perfect” defensive response from someone who has been the victim of a physical battery, initiated without any verbal engagement or preamble. And, I won’t question the apprehension of someone on the receiving end of such an attack. To my mind, the decedent needlessly escalated a verbal dispute with physical violence and paid the price.
There’s a reason and a good one that escalating to gunfire has a very narrow legality. I’ve gone back and forth on this case because of the circumstances. Only one person escalated it to life-threatening violence and that person is going to prison (death from blindside shove is not within the realm of reasonable fear of death).
It’s not particularly difficult to understand motives on both sides, but you carry a very heavy responsibility with that trigger finger.
The way McG threw Drejka to the ground, if it had been a little different and D had hit his head on anything in the parking lot, it could have been deadly. That strength he showed (probably drug-enhanced) and his size brings the possibility of deadly force into the picture for me.
No, the shove had already happened. It didn’t kill him and he didn’t even lose consciousness. Therefore, it wasn’t deadly force.
I think more critically, the victim appeared to be withdrawing or retreating. His treat to the defendant was no longer imminent. It was most likely in the past. And that means that the defendant could probably no longer have an (objectively) reasonable fear of imminent death or great bodily injury.
Moral there to never shoot someone in the back, or when they appear to be retreating or withdrawing from the confrontation. It is most likely no longer self defense at that point.
So if I shoot someone and he doesn’t die, it’s not deadly force?
Some time ago on this site the phrase “non-lethal force” came up. I wanted to know “What form of force is ‘non-lethal’?” Any force if properly and repeatedly employed can be lethal – all force has the potential to be lethal. Eighty percent of people shot with handguns survive, yet we consider handgun fire “lethal,” even though it is plainly not lethal in all situations. OTOH, fists and feet are less lethal, but his only means that your empty-handed attacker may be less skillful, less strong, and/or less persistent in his attack. But his empty-handedness is no guarantee that his assault will not become lethal. The probability that an empty-hand attack will be lethal is not zero. How long do you have to wait before you can conclude a less-than-lethal force attack has become lethal? At the point when you have received grievous bodily harm? On the verge of unconsciousness? At those times, it may be too late to respond effectively. You may be well on your way to being dead by the time you recognize the lethality of an empty-handed (or other “non-lethal”) attack.
Innocent people have a right to assure their survival when attacked with any level of force. An attacker has no right to presume he will survive a use-of-force incident he initiates. The attacker takes the chance that the defender may misjudge even a less-than-lethal attack and respond with deadly force. Who is responsible for this misjudgment? The attacker, because he initiated a chain of invents that the defender did not invite. Mr. Drejka did not invite a physical assault, he would have walked if I had been on the jury.
The 15:1 horse is a “long shot,” but can win the race. We gamble on horse racing and the deal of a deck of cards. Should the law require us to gamble with our lives? More to the point, can the law permit other people to force us to make such gambles?
Bravo DaveGinOly
All true. As is the fact the McGlockton clearly intended to continue the assault. But when he saw the gun he was in retreat when shot.
I agree re Drejka. I’d have found him not-g. The popcorn shooter claims he was struck by a cell phone in the hand of the assailant. His trial is delayed pending resolution of the immunity law by the FL Supreme Court: Case SC18-747 TASHARA LOVE vs. STATE OF FLORIDA. Oral Args last March.
There is an interesting wrinkle in the “Popcorn Shooting”, in Florida. The shooter was the subject of a clear battery, being hit with the popcorn box and cell phone, and his attacker was climbing over the seat back in what appeared to be an effort to continue the attack or initiate another one. Because the shooter was over the age of 65 years, this raised the simple misdemeanor battery to a felony and it would then likely be a forcible felony. This could justify the use of deadly force under Florida statute.
I’m surprised Mac hasn’t been here to gloat yet.
I’m off to breakfast:
https://i.etsystatic.com/6762557/r/il/376aa2/481336643/il_fullxfull.481336643_793l.jpg
I can summarize his post for you:
tl;dr
What do I have to gloat about? McGlockton is dead and Drejka is going to jail for a long, long time.
This whole thing boiled down to two basic things. Drejka was guncentric, because he carried a gun without the proper mindset. And, he lacked the training, and possibly experience, to use the firearm properly.
LEOs are taught a use of force continuum, which stipulates what force can lawfully be used to defend against the force directed at him. And, deadly force is the last level of force authorized. The training is designed to make the person less guncentric, and to use the deadly weapon as the last, not the first resort. And, LEOs still go to the gun too soon and end up in trouble.
Also, Drejka switched from using the gun as a threat to using it as a weapon, long before clear evidence existed that he was justified in doing so. This comes down to training and experience, or a lack of it.
My point was always that people who choose to carry defensive firearms have to learn when and how they can legally use them. It is the carrier’s responsibility, not that of society. In this case, if Drejka had waited for another second, before firing, would have been a much clearer indication of McGlockton’s intent. If he had kept walking toward the sidewalk, then Drejka should not have fired. If he began to move toward Drejka, than it could be reasonably assumed that an attack by McGlockton was imminent and that it would have likely resulted in Drejka’s death or great bodily harm, as it was occurring in the face of a drawn pistol.
Drejka screwed up and will pay the price. But, it is a learning experience for the rest of us. Mindset and training are critical in life.
You have a lot of talents. I surmise that concise communication is not one, though.
What do you mean? LOL.
“LEOs are taught a use of force continuum, which stipulates what force can lawfully be used to defend against the force directed at him.”
LEOs also wear a belt that has numerous tools for exercising that continuum, and have received training in all of them. The LEO is (or should be) wearing body armor, protecting him to a degree that the civilian is not generally protected, and often works with a partner (and has help on-call) who is also armed. This is very unlike the civilian, and should not be expected. Also, the LEO has a responsibility to protect the members of the community he serves, including the suspect being taken into custody. The civilian has neither such duty (custody) nor responsibility (protect his attacker).
Why should a civilian respond with “appropriate” counter-force? Is this a game of strength or skill with weapons? No, it is about survival. As Bill Jordan wrote, there is “no second place winner.” The fact that civilians don’t have a “continuum of force” to call upon should inform all potential attackers that their victims may immediately elevate their responses to an unpleasant level, and this should dissuade them from assaulting others. However, it does not, and the consequences for such poor decision-making are (or should be) solely the responsibility of the attackers.
Bravo again DGO!
Mac, normal people cannot and will not be able to pause for one second and think clearly after suffering a physical attack.
In fact, LEO’s are not able to it either. The law can and will put people in jail for exercising their self defense rights, but that is morally wrong.
The law by design protects the wrong group.
“Also extremely unhelpful to Drejka was his post-event interrogation by police, to which he voluntarily consented, without legal counsel present. In that interrogation a happily compliant Drejka, believing he’s just helping the police understand why his shooting of McGlockton was no problem, hardly an inconvenience, as the internet meme puts it, agrees to conduct a re-enactment of the shooting.”
———-
This is such a salient point. The instinct to be helpful and to talk to police officers post-incident must be overwhelming, in cases where the actor believes that he/she is totally in the right, but, I know that defense attorneys believe that nothing good (from a defense standpoint) every comes out of such communication, and, plenty of potentially incriminating harm may result from what appears to be innocuous interaction.
It seems a tough thing, to be able to restrain one’s self from talking to the police, but, it’s probably a good habit to train for.
Classic clip on this topic, featuring Law Professor to James Duane, very funny and insightful:
https://www.youtube.com/watch?v=d-7o9xYp7eE&t=1858s
If I, as a concealed carrier, ever have to shoot someone — God forbid — I will tell the police that I was attacked and thought that my life was in danger, but that I am too rattled to say anything more than that until I can get hold of my attorney.
I have one rule concerning police and that is they are not my friend. They are potential adversaries and aggressors. They may provide me with temporary safety but then while protecting me, invade my privacy and then may act against me. I believe that to police, all of us are guilty until proven innocent.
Well, you are partially correct. LEOs are NOT your friends. They are supposed to be neutral investigators and enforcers of the law. They are supposed to gather evidence and go where the evidence leads, not where they want it to lead. Some do this well, some not. What they, the police, are not going to do is to make excuses for you or to cover up your mistakes. They should not make any assumption as to your guilt or innocence until they have completed their investigation.
Now, here is the thing about post incident statements. Investigators like to obtain them as soon as possible. The reason for that is because they tend to be more accurate depictions of the witness’ perceptions. However, the witness may also be suffering from post-traumatic stress. It is extremely stressful, emotionally, to shoot, and possibly kill, some one. A natural response to this, in some people, is to suppress emotion. This makes the person look unfeeling and uncaring. It can also lead them to embellish in ways which can hurt them later. Especially if they are trying to justify their actions.
So, as the potential target of a criminal investigation, a person has to remember two things. The first is that he can not stand mute, forever. Upon immediate contact with the police he has to make a minimal statement that the use of force was done in self defense. In Florida, and some other states, this statement causes certain legal protections to kick in. It also establishs the point, to investigators, that the shooter was the victim, not the aggressor. A good investigator will not accept that as fact, at that point, but it does tend to implant the idea that the force was lawful. Then shut up. The second thing to remember is the trauma aspect. You, as the shooter, are emotionally distraught. You are no longer in firm control of yourself. You need to be seen medically and you need someone to look out for your best interests. Once you have stated that your actions were done in self defense, you request medical evaluation and contact your attorney. And go on from there.
Andrew, there were three things in the trial that I found problematic.
1. The Judge in explaining to the jury how to fill out the guilty/not guilty form read from the form a paragraph stating that if they found Drejka had fired the gun “illegally” then Drejka was guilty. This is a problem in that the judge did not mention that the state had to prove that Drejka had not fired in self defense. I get that it can be argued that the self defense is included in the term “illegally” but I don’t think that is what the jury heard/understood. I think the exception for self defense should have been part of the instruction read to the jury. I may look back at the Zimmerman trial and see what happened the instruction included there.
2. In closing argument the prosecutor stated that “all” the state had to do was prove was Drejka fired the gun. The prosecutor did not cover the self defense exception. I think the defense should have objected.
3. Also in closing argument the prosecutor stated that any man should have done what McG had done and shoved Drejka to the ground. That struck me as outrageous at the time it was said.
Thanks for the analysis.
Also, regarding being on drugs, there are signs. People used to be very scared of someone high on PCP. I haven’t heard so much about it lately, but it used to be a typical concern.
I was teaching a college class to an urban group of students, and somehow we started talking about how you could tell someone was high and the differences between one drug high and another. This sort of crazy overaggressiveness shown by McG was certainly a sign of being high, maybe on PCP but definitely some common drug.
To my mind, that would justify a finding of self defense. Because these PCP zombies are out of control and have superhuman strength and quickness.
Watching what McG did and saying anyone should act that way defies reality. But not the first unethical Florida prosecutor I’ve seen either.
Thank you Nostack, I was thinking same. The jury instructions and especially the jury wanting clarification on Florida law after getting stuck tell me, this will is a good case for appeal and I hope this guy gets a fairer trial and better judge.
That is outrageous. Why didn’t the judge call him on it?
What limits are on an attorney making final arguments? How much opinion can an attorney interject into them? Can final arguments be interrupted by objections and corrected by the judge? Or can they only be the basis of an appeal?
As I recall, most of us called this result when this incident first happened.
Every case of use of force that gains notoriety should be a learning experience that is instructional on not just what to do, but also what not to do.
My first Squad Leader when I was in the Army passed several jewels of wisdom along. One was: “Experience is the best teacher, and I’ve found that the best experience is someone else’s. It’s usually cheaper and much less painful.”
Mr. Drejka’s loss is our gain.
Like Patton saying we want the other bastard to die for his country.
I’ll also bring up one other key lesson from this whole thing: starting a violent altercation with someone is very dangerous. Even if you try to walk it back when you find you are in over your head, you can still easily wind up dead.
Arguing with a black woman in a car is not starting a violent altercation. Nope nope nope. The drugged boyfriend took it there. In a sane world that is aggravated assault. You don’t get to attack someone who is ” talking “. But.. we live in bizarro world.
But he didn’t start the altercation. She did. Even she admitted it. He was checking out the car for a handicap permit and she rolled down the window and started to yell at him.
The truck driver that testified about the previous altercation said the same thing. Drejka was looking at his truck and he started arguing.
The truck driver during direct said that he was polite. But under cross admitted that he used a few pejoratives. The truck driver made it out that Drejka was solely responsible, but it was more of a mutual thing.
The point is that the prosecutor painted Drejka out as some sort of handicap vigilante.
But that’s not the case. Drejka seemed to be more “I’m going to make the guy think that I am going to send pictures to the police and they will give him a ticket. That way maybe the next time he will think twice about parking in a handicap spot.” I don’t see how people can have a problem with that.
I’m pretty sure Voyager was not referring to Drejka but to McGlockton. He’s the one who started a violent altercation, then tried to walk it back when he found he was in over his head, but still wound up dead.
A very wise firearms attorney put it this way. The only thing that you win in a gunfight is the right to walk away. Taken further, it can be interpreted as “if you are going to a place where you ARE going to need a gun, it is probably best to not go there in the first place.”
For my morning entertainment I peruse a subreddit called /r/WCGW, for what could go wrong. It shows people making bad decisions with usually bad consequences. Since I have been reading it, I find myself in a more heightened state of awareness with regard to situations that could go south, and I pause and look both ways twice when crossing streets. As such, it is not only entertaining, but it is also an educational site. I am at the age where “dull” is usually the better option.
Those of us who make it to “dull” are the fittest, as in “survival of the …”
A great post on the case from the perspective of a lawyer. as this is a legal blog, it is wholly appropriate and very useful. However, it tends to gloss over the reality of this case.
This case revolved upon one key point and one key point only. Was the level of force used against McGlockton lawful under Florida State Laws regarding self defense. These laws are very specific as to when such force may be used, lawfully [FSS 776.012]. To be lawful, Drejka would have to REASONABLY believe that the force was NECESSARY to prevent IMMINENT death or great bodily harm or to prevent the IMMINENT commission of a forcible felony. For that, there has to be some evidence, which would convince a reasonable man in Drejjka’s position, that McGlockton was about to commit an imminent attack which would result in great bodily harm or death, to Drejka, or which would be a forcible felony.
In this case, McGlockton had withdrawn some 6-8 feet and was unable to retreat further because he was backed up against his girlfriend’s car. He moved, by turning his body to the right and bringing his left foot around into position to walk away to his right, again away from Drejka. At that point Drejka shot him. There was no clear movement in Drejka’s direction. It is reasonable to assume that a reasonable man would not have seen this as clear evidence of imminent attack. It would then become Drejka’s responsibility to convince the jury that the movement WOULD reasonably be considered evidence that an attack, by McGlockton, was imminent. That did not happen at trial.
The next point is whether a reasonable man would reasonably assume that an attack, if one were imminent, was likely to result in death, great bodily harm or constituted a forcible felony. As there was no reason to suspect that McGlockton was armed with a deadly weapon, the chances of an attack being considered a forcible felony are essentially zero. On the question of whether a reasonable man would conclude, at that point, that any physical attack mounted by McGlockton would likely result in death or great bodily harm to Drejka is also very, very low. To be reasonable, it would have to be assumed that Drejka was not able to escape or defend himself AND that McGlockton would use force or continue the attack to the point that such injury or death resulted, if deadly force was not used to stop it. That does not exist in this case.
The only way that Drejka’s uses of deadly force becomes lawful, is if he can convince a jury that, contrary to the witness statements and the surveillance video, a reasonable man would conclude that a physical attack, from McGlockton, was imminent and that the level of the attack was likely to result in death or great bodily harm to Drejka, or that Drejka was suffering from a debilitating condition, due to the previous attack by McGlockton, which precluded him from accurately assessing McGlockton’s actions. Again, this did not happen. Drejka actually presented NO affirmative defense in this case.
It is reasonable to assume that a reasonable man would not have seen this as clear evidence of imminent attack.
But a reasonable man would have seen no evidence that McGlockton was about to attack Drejka in the first place. Yet he did. The violent shove was unprovoked and unexpected. A reasonable man might wonder, what other unprovoked and unexpected actions might McGockton take right now? It would be reasonable for McGlockton to back off when the gun appeared. But we’ve already established that McGlockton was not a reasonable man.
On the question of whether a reasonable man would conclude, at that point, that any physical attack mounted by McGlockton would likely result in death or great bodily harm to Drejka is also very, very low.
It’s not low at all. If McGlockton continued his attack, death or great bodily harm is rather likely. Of course McGlockton didn’t continue his attack, so this must remain conjectural.
“But a reasonable man would have seen no evidence that McGlockton was about to attack Drejka in the first place. Yet he did. The violent shove was unprovoked and unexpected. A reasonable man might wonder, what other unprovoked and unexpected actions might McGockton take right now? It would be reasonable for McGlockton to back off when the gun appeared. But we’ve already established that McGlockton was not a reasonable man.”
Actually, almost any REASONABLE man WOULD have seen evidence that McGlockton was intent upon attacking Drejka initially. MbGlockton walked directly toward Drejka in an aggressive manner, bent slightly forward and not slowing when he got close. Drejka didn’t see this because he was concentrating on McGlockton’s girlfriend.
As to McGlockton’s reasonableness or lack of it, that is irrelevant to the case. What is relevant is that McGlockton backed off and made NO movement which clearly indicated that any further track on Drejka was imminent. A man is released from prison after serving time for armed robbery. He walks into a jewelry store. Can the owner shoot him because he MIGHT decide to rob the place?
Actually, there is no indication that if McGlockton HAD chosen to attack Drejka, that it was likely to result in great bodily harm or death. The vast majority of fist fights do not result in either. Great bodily harm [as legally defined] or death occurs in an almost statistically insignificant number of physical fights. If this were not true then it would be permissible to shoot anyone who raised an empty hand to you.
Good try, though.
Yes there was an indication that further physical contact might be very damaging. A big guy had just tossed him aside like a sack of potatoes without apparent effort. Drejka probably weighs at least 150, much bigger and heavier than a sack of potatoes. The whole thing happened so fast Drejka could not react until he landed on the asphalt, fortunately for him not head down.
This guy did not have normal strength, but looked just like what I’ve seen in videos of people high on PCP.
A reasonable man would know that a hyper-aggressive, much larger and younger man was high on something and so gaining a proper perception of what the heck his decision tree looks like from laying on the ground is a leap beyond. Once a act, the football lineman takedown, there is no way to judge what comes next or when. There is no way to know that the next thing out of that womans’ mouth is, something so inflammatory that the BF circles back and foot stomps the man unconscious. It is beyond me that the BF being on drugs was deemed a no big deal. That’s just crazy. And arguing with a black female is not , or should not be, automatic fight time in a DA’s mind. That is crazy for the DA to argue that.
Exactly. Now you understand the problem. There is NO WAY to actually predict WHAT McGloskton will do, until he does it. And, Drejka never allowed McGlockton to clearly exhibit his intent, before he shot him.
What you entirely ignore is that there was a distance of ~8 feet between McGlockton and Drejka. While not very far it does take a second or so to traverse. McGlockton had no distance weapon and so would have to traverse that distance to attack Drejka. Drejka was seated on the ground in a relatively stable shooting posture, pointing a handgun directly at McGlockton. Even if we assume that Drejka has the reaction time of a sloth, he should still be able to identify the fact that McGlockton is moving toward him, in an aggressive manner, and fire at least one round before McGlockton makes contact.
Now, the DA wants to establish that Drejka was not some innocent man minding his own business on his way to get a Slurpee, when McGlockton attacked him. Drejka was engaged in a loud verbal altercation with McGlockton’s girlfriend, to the point where a customer entering the store noted it and notified the clerk. McGlockton goes outside, sees his girlfriend involved and essentially cold cocks Drejka by shoving him. Illegal and pretty law-of-the-junglesque, but not totally unjustifiable. When presented with superior force, the handgun, McGlockton retreats, until he can retreat no further and when he begins a turn, possibly to continue his retreat, Drejka shoots him. And, there lies the problem. McGlockton had retreated as far as he could. Then he turned to his right. This is not a clear indication that he was going to attack Drejka, especially looking down the barrel of a .40S&W pistol, as it is more likely that it was a continuation of his attempt to retreat.
Good points except, the shove. No no no. You don’t get to shove someone arguing with your GF, and had that guy not been doped up, he might not have. We cannot know state of mind of a man just shoved to the ground, hard. He doesn’t have the benefit of finding out how fast McGlockton can make a 8 or 15 ft distance and beat him to death… and we all know, that even if Drejka waited for a clearer signal, he could unload his magazine into that guy and still could have been killed before McGlockton bled out. That’s why second guessing what threat Drejka could reasonably have felt and acted on versus what is a threat to someone after the fact is so crazy.
To me, I’m fine with a jury judging this. But this prosecutor and judge handled this in a political manner and no doubt they knew this trial was grist for the PC / BLM mill and made sure to get what they wanted. The GF is the reason for ALL of this. She got her boyfriend killed.
In our society, a person does not have the right to punish another for his actions. Drejka had NO right to punish McGlockton for shoving him. Now, McGlockton was wrong, in that the shove constituted a clear criminal battery. But, he can not be executed for that.
As to whether Drejka was stunned to the point of being incapable of making a clear judgement of whether McGlockton was going to attack him again, that is why he should have taken the stand in his own defense. Otherwise, all you have is idle speculation as to his mental condition.
Our laws do not allow a person to harm another because that person MIGHT attack him at some unspecified time in the future. It only allows one to defend themselves from imminent attack. In this case, there was no clear indication that any attack was imminent.
Now, McGlockton’s girlfriend should not have parked in the handicap space. Drejka should not have gotten involved in a loud argument with her. Drejka should have had better situational awareness, and he would not have been blindsided by McGlockton. McGlockton should not have shoved Drejka. And Drejka should not have shot McGlockton. No one was innocent in all of this. And, all will pay the appropriate penalty.
That’s a new meaning for the word “shove”.
“There is NO WAY to actually predict WHAT McGloskton (sic) will do, until he does it.”
So, the defender must wait for the lethal blow, instead of taking action to prevent it? (Certainly, you’re not going to represent that a lethal blow is always preceded by signs and signals that such a blow is impending.) What if the first blow is lethal? Defender’s last thought,”Yup, that was lethal, should have shot that bastard.” This is not acceptable.
Eight feet can be covered in a trice, which is far less than a second. McGlockton has already done one unreasonable thing (knocking Drejka to the ground), why would it be unreasonable to expect him to do something else unreasonable, like decide to attack a man with a gun? McGlockton could have been on the cusp of deciding whether or not to re-engage Drejka. Of course Drejka had no way of knowing that, but he also had no way of knowing that wasn’t the case. The defender will always lack “perfect information” (to take a term from game theory), and can never know everything about his situation. The best a defender can do is err on the side of his own survival. Lethal force wasn’t necessary? The attacker also lacks perfect knowledge (McGlockton didn’t know Drejka was armed) and is the person responsible for all of the bad decisions made in this situation.
You don’t need a deadly weapon. Hands and feet are potential deadly weapons from a legal perspective. You absolutely don’t need a wrench or knife or club.
So you state that “… McGlockton had relatively high levels of illegal drugs in his system at time. Frankly, this is also irrelevant under the facts of the case.” No doubt that his death was a tragedy, I will sound callous here and say that he was not an upstanding citizen and he also contributed to crime here in my home state of Florida. In essence, his illegal drug use is quite relevant to many of us and thus for me it is difficult to feel sorry for either one.
would like to have seen/read a transcript of D’s initial interview with the police–would’ve listened for one word:
” they.”–as in ” they were converging on me, ” or ” they were getting ready to stomp me, ” or ” they were circling me. ”
multiple attackers as perceived by D–as in practically any multiple-attacker scenario(when you’re alone)you take out the nearest/most serious threat first, then proceed to the others
believe D was doing just that–one shot, controlled and deliberate to the closest threat
believe the ” defense ” fell down on the job here–there is the letter of the law and the spirit of the law–while D may have technically violated the letter of the law believe he was acting within the spirit of the law in responding to multiple potential attackers
btw, ” retreating ” to a distance of 2 or 3 meters is no significant obstacle/buffer to a blitz attack in a street fight (car or no car)
There is no evidence that any attack was imminent, let lone one from multiple attackers. And retreating is just that retreating. And, it is significant that McGlockton was limited in his distance to retreat directly away from Drejka by the car behind him.
The problem that the defense faced was that there was almost no defense which could be based upon anything other than wishful thinking, and they knew it.
Except for the girlfriends statement that she told Drejka that “When her man got there he was going to mess him up.” and the fact that she alone was big enough to “take” Drejka. The fact thatas MM approached she got out of the car, basically distracting Drejka.
So. let’s deal with your points.
“Except for the girlfriends statement that she told Drejka that “When her man got there he was going to mess him up.” and the fact that she alone was big enough to “take” Drejka. The fact thatas MM approached she got out of the car, basically distracting Drejka.”
The girlfriend made that statement prior to McGlockton appearing on the scene and out of McGlockton’s hearing. So, it was here statement and McGlockton would have had no knowledge of it. So, you can not really base any decision to act against McGlockton based upon that statement.
While the fact that the girlfriend getting out of the car was a distraction for Drejka, this does not mean that she was intentionally attempting to distract him so he would not see the approach of McGlockton. She could have been getting out of the car because she saw McGlockton approaching and wanted to tell him what was transpiring. And, the girlfriend made no movement toward Drejka before or after he was shoved. Unfounded paranoia is not ground for the use of deadly force. Sorry.
“So, it was here statement and McGlockton would have had no knowledge of it. So, you can not really base any decision to act against McGlockton based upon that statement.”
To judge Drejka’s action, what matters is how it appeared to him, not what McGlockton would have known or perceived.
(Other than perhaps, maybe if Drejka’s guess about what McG was thinking, based on what his gf had told him, would affect Drejka’s reasonable assessment of the situation. But that reasoning is more complex than what we’re discussing anyway — and as you say, Drejka had no basis for such an assessment.)
How something “appears” to an individual is only applicable if the perception is based on reality. To the delusional, fantasy appears real. But, it is not. People make mistaken judgements based upon false appearances all the time. That is how they get into trouble. What you are doing is attempting to justify D’s actions based upon his faulty perception of reality. Let’s give D the benefit of the doubt and say that he made an assumption which was not based upon any factual evidence.
“The girlfriend made that statement prior to McGlockton appearing on the scene and out of McGlockton’s hearing. So, it was here statement and McGlockton would have had no knowledge of it. So, you can not really base any decision to act against McGlockton based upon that statement.”
I disagree. McGlockton’s GF gave Drejka an indication of what to expect from him, establishing in Drejka’s mind that McGlockton would resort to violence. His GF was obviously at least an acquaintance, and if she had indicated that they had an intimate relationship (by the use of such terms as “boyfriend” and/or “girlfriend”) Drejka could (or should) presume that her characterization of McGlockton was accurate. (And was proved to be accurate when McGlockton did immediately resort to violence.)
“While the fact that the girlfriend getting out of the car was a distraction for Drejka, this does not mean that she was intentionally attempting to distract him so he would not see the approach of McGlockton.”
But if getting out of the car did distract Drejka, he would not have been able to know the distraction was unintended. The unintended distraction of Drejka by the GF’s movement is indistinguishable from intentional distraction, and the results of either are the same.
“And, the girlfriend made no movement toward Drejka before or after he was shoved. Unfounded paranoia is not ground for the use of deadly force. Sorry.”
Drekja’s “paranoia” is not unfounded. Drejka had been warned of/threatened with violence and that violence materialized exactly as the GF said that it would. After that, Drekja had every reason to expect the worse, and that would include the GF’s intent to join in the beat down she predicted. It just didn’t play out that way – Drejka’s use of a firearm to put a decisive end to the situation altered McGlockton’s and his GF’s plans for him, whatever they may have been. (Again, no perfect information – Drejka didn’t know they had plans, but he didn’t know they didn’t.) Drejka had been given cause to not give them a chance to put those plans into effect.
Too many times, the question is framed as “do not talk to the police” period.
The better way is to think and say: “I don’t have anything to say on this at this time” Sometimes after making the point that the person shot was the aggressor and you are the victim sometimes not. You don’t need to tell the police that you refuse to talk to them or that you know your rights etc. This looks bad and puts the cops back up. Just say politely that you don’t have anything to say at that time and that you need medical attention (a request one should always make after a violent incident even if you don’t believe you were harmed. Let a medical professional make that judgement) and contact with your legal representative.
That video did Drejka in showing the aggressor backing off as the pistol was pointed at him then a pause and then Drejka firing. I didn’t hear about Drejka’s other incidents of threatening others with shooting. That’s also not a good indication.
justice was done in my view. The law putting a person in jail for life for manslaughter I have a lot of problems with.
I have no problem with the verdict. There was simply too much time between the presentation of the gun and the firing of the gun to justify self-defense.
Drejka allowed McGlockton to back away from him before firing the weapon. While I support the justification for pulling out the gun and pointing it at McGlockton there is no justification for allowing McGlockton to retreat and than shoot him absent any evidence that McGlockton was going to do something else to justify being shot.
Drejka’s best chance at justifying the shooting would have been had he pulled the gun out and shot McGlockton immediately while McGlockton was at that point still standing over him and moving closer to him.
One thing I am starting to think about though is the 10-20-Life thing for firearms in Florida. Could Drejka argue that a life sentence in his case would be a violation of the 8th Amendment against cruel and unusual punishments? After all while Drejka is guilty of manslaughter it’s still obvious that from his point of view his actions were in self-defense. It’s not as if he committed a robbery.
Could he argue that the sentence is too severe for what he is guilty of? That a person facing a manslaughter charge without the use of a gun but a similar circumstance of faulty self-defense would get far less time than Drejka?
Look at the video again. McGlockton stopped his advance on Drejka before Drejka drew his gun. McGlockton was backing away, before Drejka got the pistol aligned with him. There was simply no way for Drejka to provide adequate justification for shooting McGlockton. What Drejjka should have done was to cover McGlockton with his pistol and allow McGlockton to continue attempting to retreat further from him. If McGlockton had made a definite move, in Drejka’s direction, especially an aggressive move, then Drejka might have been able to justify shooting him.
If D simply thought about it for a moment and shot M, this is a crime. If he panicked because he could not see M’s hands and M had begun to turn away from him, that is a crime. If D shot M because he thought M might attack him sometime in the future, that would be a crime.
Actually if you look at the video again McGlockton is moving towards Drejka until Drejka puts his hands to his side.
You say McGlockton was backing away before Drejka drew his gun.
I say McGlockton started backing away because he saw Drejka drawing the gun from his holster and starting back away. So Drejka puts his hands on the gun in the holster, starting to draw it, and McGlockton seeing that stops and starts backing away.
How I see the video:
1. McGlockton pushes Drejka
2. Drejka fall to the ground
3. McGlockton continue to move towards Drejka as Drejka lands on the ground and comes to a sitting position
4. Drejka put his right hand to his waistband AND at that point McGlockton seeing the gun in the holster start to come out stops and starts backing up. Also the supposed witness* also moving towards Drejka’s position sees the gun coming out of the holster and he too moves away.
Drejka was justified in pulling out the gun. He was not justified in shooting as he waited too long in my opinion. He might have been better off in front of a jury if he had shot immediately. He could rebut a claim that McGlockton was moving away by stating that things happened so fast that he didn’t register the movement. He shot to defend himself. That might have worked.
I say supposed witness because I’ve always believed that witness probably ramped up McGlockton with a hyped up statement about what was happening outside and that he too was going to move in on Drejka and possibly participate in the assault.
“How I see the video:
1. McGlockton pushes Drejka
2. Drejka fall to the ground
3. McGlockton continue to move towards Drejka as Drejka lands on the ground and comes to a sitting position
4. Drejka put his right hand to his waistband AND at that point McGlockton seeing the gun in the holster start to come out stops and starts backing up. Also the supposed witness* also moving towards Drejka’s position sees the gun coming out of the holster and he too moves away.”
Exactly. M shoves D takes two steps forward and stops standing over D. D reaches to his right side, to draw his pistol, and M begins to back up immediately. This probably because he saw that D was drawing his pistol. D continues to drw his weapon and points it directly at M, who has arrived at the fender of the car and has stopped.Both parties hesitate for a second, then M begins to turn to his right and D shoots him.
See, what you are doing is trying to game the system to exonerate D. Unless there is evidence that M intended to launch an immediate attack on D, then shooting him was simply not justified. A better course of action for D would have been to hold his fire until M actually made a move to close the distance between them. he did not wait for that. So, he is going to jail for a long time.
As to the witness having any involvement or intent to intervene on M’s behalf, there is simply no evidence to support that. Perhaps D shot M because there was a leprechaun approaching on a unicorn as well.
No, D owns this shooting and all its attendant problems.
“See, what you are doing is trying to game the system to exonerate D.”
No. As I said: “I have no problem with the verdict. There was simply too much time between the presentation of the gun and the firing of the gun to justify self-defense.”
You sir are trying to game my words to mean something they do not. I do not think Drejka is not guilty. He is guilty. I simply said that in this situation Drejka’s best chance at an acquittal was if he had drawn and immediately fired the weapon. Notice I said his best chance. I didn’t say a jury would buy his reasoning and find him not guilty 100% of the time only that he had a better chance of a of a not guilty verdict happening. Even if he had immediately fired there was a chance that a jury would find him guilty.
I also chimed in that maybe the 10-20-Life law shouldn’t apply in cases like this because clearly he wasn’t intending, from his point of view, to do a criminal act.
” I do not think Drejka is not guilty. He is guilty. I simply said that in this situation Drejka’s best chance at an acquittal was if he had drawn and immediately fired the weapon. Notice I said his best chance. I didn’t say a jury would buy his reasoning and find him not guilty 100% of the time only that he had a better chance of a of a not guilty verdict happening. Even if he had immediately fired there was a chance that a jury would find him guilty.”
This why I say you are trying to game the system. If the shooting was not legally justified when it happened, it would not be any more legally justified if D had shot M earlier, while he was backing up. All you are doing is saying that if he had fired while M was backing up. D would have been able to better argue that he thought M was attacking him because less time had passed between being knocked down and firing the shot. However, how does he justify thinking that M was attacking him by moving away from him?
No matter when D fired his weapon, unless M was actually moving in his direction, it was a bad shooting and a violation of law.
I started a reply and my browser crapped out losing it. I don’t have the energy to do it all over again.
First I think that the defense made a big mistake. They didn’t argue Brown vs United States “Moreover if the last shot was intentional and may seem to have been unnecessary when considered in cold blood, the defendant would not necessarily lose his immunity if it followed close upon the others while the heat of the conflict was on, and if the defendant believed that he was fighting for his life.”
Which basically says that given reaction time, even though a threat is over you have to give the defendant some leeway in using deadly force.
In other terms. if Chuck Norris would have been shoved to the ground he would have realized the guy was backing away. But if Chuck Norris was the one shoved to the ground, he would have reacted and shot before MM was backing away. Drejka not being Chuck Norris took some time to shoot.
Initially I thought that Drejka reacted and shot him out of anger, but that there was enough doubt that he did it in anger rather then fear to free him. During the trial I came to a different conclusion,
that Drejka was shoved and when he realized what was happening, realized that he had to shoot to protect himself, and that before he did so MM backed off, but Drejka did not realize that he backed off when he fired.
The saddest part was the way the prosecution played this one. From the beginning they were determined to use any tactic to put him away. As two points check out the defense closing arguments: https://www.youtube.com/watch?v=EHIEHRzsh0U
Notice how during the defense argument the prosecutor rolls his eyes, shakes his head makes facial expressions.
And during the second closing: https://www.youtube.com/watch?v=wJa7tihZXvY&t=46s
the prosecutor is foaming at the mouth. He doesn’t appeal to the evidence he ridicules the defense.
Given a prosecution like this George Zimmerman would not have had a chance. Florida prosecutors learned Zimmerman, but they learned all the wrong lessons.
It is bad enough that defense attorneys act this way. We don’t need prosecutors acting the same way.
Zimmerman was able to show that, at the moment he fired, Martin was astride him pounding his head into the ground.
D was not able to show any such overt action by his assailant at the moment he fired.
Andrew has pointed out that in self defense, you are always behind the curve; you are reacting to an attack. D tried to get ahead of the curve. The jury wanted more than the shove to justify his action.
Perhaps that’s the lesson. Don’t jump the gun.
Your job as a defender in a violent confrontation is to get ahead of the curve. Because if you stay behind the curve, your opponent maintains the initiative and can land the first lethal blow (whether it be a blow with a fist or a firearm). This is known as “getting inside your opponent’s OODA loop.” (https://en.wikipedia.org/wiki/OODA_loop) The purpose of “getting inside the loop” is to cut off your opponent at a point ahead of him on his own loop. You must get ahead of him on the curve, it’s the only way to win. When winning means “surviving,” there is no room for compromise.
Any actions you take as a defender have to be in accordance with the law. D got ahead of the legal curve when he failed to wait for a clear signal of jeopardy. The fight had paused – McG didn’t immediately follow through. Arguments like “He was close enough to deliver a fatal kick” may show ability and opportunity, but they don’t show jeopardy. IMO, if your legal defense rests on “If he had” or “He could have”, you are going to join D in prison. The jury saw the same video we did. They saw the shove and the fall. They found him guilty. Zimmerman showed clear jeopardy and is not guilty. D should have waited for the clear signal. Your strategy to win the fight has to be legally sound; his wasn’t.
A sound legal strategy could include not being the parking lot nazi, avoiding arguments with stupid people, carrying a non lethal weapon, anger management and learning to walk away. Not getting into a fight is usually the very best strategy.
“Any actions you take as a defender have to be in accordance with the law.”
Don’t take your own advice, you’ll end up dead. The law is intended to protect the bad people.
The evidence seems pretty clear. Zimmerman did it my way. He didn’t die and he sleeps at home a free man. Drejka did it your way and sleeps in a prison cell.
I wonder if Drejka ever said to himself, “I’de rather be judged by 12 than carried by 6”? If so, I bet he’s rethinking it.
Statistics tell us that 2 million times each year people legally use a gun to stop a crime. They display the weapon and change the outcome, usually (90+%) without a shot being fired. Displaying the weapon changes the dynamic of the situation. Most bad guys decide to leave. Drejka should have waited until he was sure; he would be at home.
First I am shocked that the jury convicted. I was wrong on that outcome. From some posts with details of trial and jury instructions this should be appealed.
I have done jury duty half a dozen times military and civilian. My personal point of view as a juror is to make the prosecution meet its burden and disprove anything in the evidence that a juror could hang their hat on to acquit.
Personally had I been on that jury I would have made the prosecution take away the shielded/obscured right hand of M. It appears to me that D could not have seen what if anything M had in his hand. Obviously from the camera angles we can see that M doesn’t have anything, but D couldn’t see that. Reasonable doubt.
So lessons learned/points of emphasis
1. Do not draw, point aim and fire unless you are certain
2. Call out in a loud voice ‘stop’, ‘show me your hands’. You have now given very simple instructions to be followed. If not followed you at least have that to fall back on as a justification for firing. Maybe enough but maybe not. See point 1 above..
3. Do not refuse a trip to hospital and on site emt care. This creates a record for your potential defense. If nothing else the hospital will have a psychologist you can confer with.
4. When PD begins questioning make a brief statement to the effect that ‘ I am too shaken up to make a statement at this time. I will need to complete my medical treatment and speak to my attorney first. Now you have added to the record ‘medical’ a second time and most importantly used the magic word; Attorney. You have also provided a timeline/order of events to follow before you are willing to speak with PD.
5. If you don’t know a good criminal attorney then call the attorney you do know. If nothing else they can show up and tell the PD to stop attempting to question you when the attorney they recommend is on the way. Do not hire some relative or someone out of the phone book as your attorney.
6. You will get what you pay for. Probably count on $250K as a minimum for expert witness, exhibits and attorney fees. From some of Andrew statements and those with some trial details it appears D had a seemingly inexperienced attorney for some of the mistakes made IMO.
Hats off to Mac45 for calling this one.
First of all, if you were on the jury you would not have been able to question the prosecution. That is the job of the defense. Now, in the interview done with the detective right after the shooting Drejka made note that he couldn’t see McGlockton’s hands or face. However, he never said that he thought McGlockton was armed. The defense could have placed Drejka on the stand and gotten him to expound on that. It didn’t. What it looked like to me was that the defense attorneys did not think that Drejka would be able to adequately explain certain things which may have helped his case. I’m not really sure what the strategy was there. We’ll have to see where it goes from here.
Your points on handling the situation, once it develops, are very good.
Mac45,
First hat tip to you for jury prediction.
Second thanks for approval of my suggestions for conduct during and post shooting encounter.
Now, due respect to you, but I and every else who has ever seen any courtroom TV drama is aware that a juror doesn’t get to ask direct questions. Come on man, do really think I don’t know that? Devil’s advocate is one thing but seriously, use your sarcasm font next time so I can figure out if you are being serious or not.
IMO from what I knew based on watching the video and without benefit of review of D statements or anything other than the original article, the only thing I thought a juror could hang their hat on for reasonable doubt was the inability of D to view M right hand.
Obviously since D gave a statement at the scene that detracted from that argument it’s too risky to put D on the stand simply to try and walk that back at trial. That would be my opinion as one who went to law school but who never took the bar exam for what that is worth. Very little most of the time, except I can brief a case, know how to research and can write fairly well. I suppose it’s the equivalent of someone studying Judo, now I have enough everyday legal knowledge to realize how much I don’t know about the Law, while appreciating the confidence that comes from knowing my limits. Frankly I am surprised at least weekly how often the knowledge does come in handy.
It looks like you were dialed in on this from the jump. Maybe you got more info since it was in your neck of the woods. Anyhow let us know if you pick up some local insight on likely hood of appeal etc. You really pegged this one, and I appreciate your thoughts even when we disagree.
Drejka was in “fight” mode (not being capable of “flight”) and his actions were being guided by lower brain functions of which he would have been unaware. McGlockton’s “hidden hand” could have registered as a threat without Drejka being consciously aware of the evaluation, and he would therefore have been unable to comment upon it later. (This could also explain the delay in taking the shot – Drejka was waiting – subconsciously – to see if the hand would become visible. When it did not, he fired because his instincts told him the hidden hand represented an ongoing threat.)
With all of the burdens put on the defender in lethal force situations, what I’ve been reading here (on LI in general) is that when a defender’s use of lethal force meets the standards set by law that this is just a fortunate coincidence. No person can possibly have a complete knowledge of the law (that changes from jurisdiction to jurisdiction, and that even those schooled in the law argue about) or perfect information about the situation (complete knowledge of the situation, including his opponent’s intent, skill levels, and whether or not he may be armed or have other weapons than those that might be visible, etc.). Even if a person did have this information, nobody could possibly synthesize this data unerringly in the seconds during a violent encounter when his focus is on survival now (focusing on survival later is simply not a good idea). Defenders who experience “good shoots” or who are exonerated at trial seem to be just lucky. Surviving a lethal force incident and avoiding jail does not appear to be the result of either knowledge about the situation or how the law applies to it. The police investigation into the shooting, and the possible subsequent trial, only make it seem that the defender had properly sorted out the facts and the law, when in fact, at the moment of the incident, he almost certainly had a lot of it wrong (if for no other reason than it appears to be impossible, under the duress of a potentially lethal attack, to get everything right).
Yep, if you follow the advice of many you’ll be dead. Legal, but dead.
We are protecting the bad guy with the law. The person that was attacked – he is subjected to incarceration for defending himself.
As long as we are talking about who the biggest loser was in this shoot, may I nominate the Media and its false and misleading “Stand your Ground” narrative?
Thankfully, they won’t be able to gin up additional confusion as to the law due to a guilty verdict, having to table their false narratives until another occasion where a white gun owner kills an unarmed person of color in self-defense.
I’ve watched the video. What I don’t understand is how the prosecutor managed to convince the jury beyond a reasonable doubt that Drejka did not think that his assailant was going to attack him again, and was not in fear for his life. Because the assailant was maneuvering? Having been attacked before, I would have stayed with the shooter’s perceptions, and would not have voted to convict.
First of all, what a person “believes” has to be measured against what a reasonable person, in the same circumstances, would most likely believe. In this case, even if Drejka “believed” that McGlockton was going to attack him, again, and this placed him in a state of fear, some evidence that this belief was justified has to be available. Otherwise, a reasonable man would not be expected to reasonably believe it were true.
In this case, in order for a reasonable man to reasonably believe that M was going to immediately attack D, M would either have too have some kind of distance weapon in hand or be moving in the direction of D. Neither circumstance was evident. M had no distance weapon in his possession and he made no movement toward D, which would justify using force against him.
As a juror, you have to utilize the legal standards which apply in the case, when deciding guilt or innocence. You are acting as the trier of FACT, not supposition. And, in this case, the observable evidence did not support a reasonable man conclusion that M was going to attack D again.
“In this case, even if Drejka “believed” that McGlockton was going to attack him, again, and this placed him in a state of fear, some evidence that this belief was justified has to be available.”
The video gave all the evidence necessary – McGlockton had, only seconds earlier, violently assaulted Drejka. Drejka had little reason (being eight feet away is not far enough away) to think that it wasn’t going to happen again (again, you’re demanding that Drejka should have perfect information and was able to discern McGlockton’s intentions). Had Drejka remained on his feet, been pushed several feet away, and had then squared up to McGlockton and approached him with his (Drejka’s) firearm drawn, that would have been a different story. Unfortunately for McGlockton, his shove put Drejka on the ground, from where he was unable to retreat from the threat. Although McGlockton may not have been able to withdraw to a greater distance (because a car was in his way), it is not Drejka’s responsibility, merely McGlockton’s misfortune, that a known and proven threat was still in such proximity.
Absent any verbal indication from McGlockton that he was backing down it seems reasonable to fear that any movement on his part was threatening.
Oh BS. Even trained LEO’s cannot react the way you suggest.
The man was attacked. Everything that occurred after including the fatal shot was all the same. A man defending himself.
The only victim is the man they wish to incarcerate.
I would have convicted him. McG was retreating and was too far away to hit D again. IMO.
Question to you is was M within the 21 foot zone? I am not insinuating that you are unfamiliar with the 21 foot zone, but for those who are not:
Very generally one is taught not to allow a potential opponent closer than a distance of 21 feet. Reason is that is supposed to be the distance a potential opponent could close to you before you are able to draw, aim fire. Sometimes in training this is emphasized too much sometimes too little. It is a guideline not a law that gives the right or puts you under an obligation to open fire.
Was he blacking up, was he going sideways? Was he hesitant? Was he moving backwards as far as possible keeping his hands in plain view? Did it appear by his body language that M had conceded and given up? IMO none of that is absolutely 100% certain.
I hope I would have had enough situational awareness to avoid the first shove by M, because that would have eliminated everything that followed it. With any luck we could have gone on our merry separate ways.
I do have my suspicions that D either panicked and fired or did so because he was pissed he got knocked on his rear end and M was still close enough…..I obviously don’t know that for certain and certainly can’t speak to his state of mind.
If I was on jury I would have tried to hang my hat for reasonable doubt on the obscured right hand of M. Except that D mistakenly gave a statement that, by omission and commission rendered that option null. So now I can see how that verdict came in.
Even though we can all see several opportunities for this sequence of events to go down differently it is easy for all of us to Monday morning QB these two men. One is dead and the other facing effectively life in prison. We were not there in those moments. I have been as guilty as anyone else on this site of that.
All self-defenders in their use of force (whatever level it is ) must be BOTH objectively and subjectively reasonable. In my jurisdiction the defense of “imperfect self-defense” is allowed. ISD can and is argued, and on occasion successfully so, when the objective prong cannot be met, but the subjective prong can. In which case, a murder charge reduces to voluntary manslaughter.
It speaks to the prosecution’s smarts in this case, given FL’s sentencing enhancements for the use of a gun in a felony in which someone gets killed using the gun, to avoid the whole issue of “perceptual distortions” as they related to Drejka’s state of mind at the time of his use of force. In my view, they knew perfectly well that the video, and Drejka’s own incriminatory commentary post-shooting, would clearly establish the absence of objective reasonableness.
IMO, the Defense knew that likely outcome also, given that defendant did not testify. Moreover, there was (apparently) no any expert testimony presented on defendant’s behalf as to perceptual distortions as a function of the so-called body alarm reaction to the felt sense of impending death.
While this is a distinct possibility, it is also likely that the prosecutor knew that he could never prove either premeditated or 2nd degree murder. There was simply NO evidence to support it. Negligent homicide was off the table, as this action was deliberate, not accidental. That left manslaughter. So, that was the charge. And, as lawful self defense was going to be relatively easy to disprove, the level of force used was clearly NOT justified under statute, the prosecution began with the appropriate charge. Barring some outlandish jury nullification, failing to secure a conviction in this case was nearly impossible.
And if I could edit my previous post to include by clarifying that the prosecution was willing to charge with manslaughter rather than some level of murder just because they were willing to grant the validity of Drejka’s perceptual distortions, and instead focusing their efforts on establishing the evidence against the objective reasonableness prong. Hell, he’s going away for a long time anyhow.
so it’s ” reasonable ” to subjectively determine M’s intent, though he’s dead so we cannot definitely know and then ” not reasonable ” (besides also subjective)to extend the same doubt as to why D didn’t fire quickly enough?
come on
Actually, as M was retreating before D pointed the pistol at him, D never had the opportunity to fire “quickly enough” to justify the shooting. D’s problem was that he fired too soon. The video evidence clearly showed M retreating. The video evidence failed to show that M made any movement which would bring him closer to D. So, what D should have done was to wait a heartbeat after M began his turn to the right to determine what M’s intent was. He jumped the gun.
Prosecution charged it; jury confirmed. Is what it is. Don’t like. Don’t do it?
defense blew it
I write as a life member of the NRA, the holder of three concealed carry permits, and a daily concealed carrier who regards part of getting dressed as putting on my gun. I see the second amendment as an integral part of our American rights.
I agree with the verdict, and would like to point to what I believe to be long-established common law applicable in every state regarding the use of deadly force in self defense. The application of the law will vary with juries and prosecutors, but not the law itself. Some states go further and allow the use of deadly force to protect property, but in every state the following applies.
To sustain a claim of self defense with deadly force, you must show that you had a reasonable fear of imminent grave injury or death. The assailant must have had the ability and the opportunity to cause those things, and the defender must have been in imminent jeopardy, with reasonableness being the standard.
Anyone who views the video can see that the shooter in that case fired his weapon as the assailant was retreating. There’s no ambiguity about it. Thus, no jeopardy. No jeopardy, no self defense. Guilty as charged. For that reason alone, if I’d been on the jury, I’d have voted to convict.
There is more to say.
In practice, any claim of self-defense will be badly undermined if the “defender” was involved in a confrontation, altercation, or argument that escalated — especially if he instigated it. Furthermore, carrying a firearm does not confer general police power on the carrier. It can only be used to defend one’s self, or others in proximity, against a deadly threat as interpreted by the elements of ability, opportunity, and jeopardy.
As an example, if I am carrying and see someone breaking into a car in a grocery store parking lot, I am not empowered to use or threaten deadly force to stop it. If I witness a bar fight, I’m not empowered to draw my gun and break it up. On the other hand, if I’m at a 7-Eleven and a robber enters the store with his gun drawn, or starts beating the cashier with a lead pipe, I can use my gun because the elements of ability, opportunity, and jeopardy are present.
For a good layman’s guide, see this link:
http://www.corneredcat.com/article/legal-concerns/ability-opportunity-jeopardy/
This case is right smack out of the textbook. It is as clear as these things ever get. The shooter did everything wrong. He initiated the altercation; he assumed police powers; he used deadly force in the absence of jeopardy.
Carrying a firearm entails a grave responsibility, part of which is a clear sense of one’s limitations. It does not make the carrier the arm of truth, justice, and the American way, much less the enforcer of parking laws. It doesn’t matter if the person he shoots is someone we dislike or disdain, even if we have good reasons for doing so.
A carrier of a weapon can use it only in emergencies as defined by ability, opportunity, and jeopardy. I hope this case becomes a standard part of concealed carrier training everywhere.
You need to go back and read the 2nd.
“It is as clear as these things ever get. The shooter did everything wrong. He initiated the altercation; he assumed police powers; he used deadly force in the absence of jeopardy.”
Every single word of that is wrong.
The second amendment recognizes the right to keep and bear arms for the purpose of self defense, that being the interpretation of the 2008 Heller case. The AOJ doctrine defines self defense; because the shooter in Florida was not in jeopardy, it was not self defense and therefore not a second amendment issue.
I am as strong a proponent of armed self defense as you will find. I’ve never been even suspected of a crime, much less arrested, investigated, prosecuted, or convicted. I am 100% on the side of the law-abiding armed citizen. But self defense is not a license for revenge, anger, or vigilantism, and carrying a gun does not make the carrier into a police officer.
“The AOJ doctrine defines self defense”
No. AOJ defines “imminence” which is ONE of the (up to) FIVE elements that define the legal defense of self-defense.
Sadly, poorly informed instructors routinely teach AOJ as if it were the entirety of the legal defense of self-defense. They are mistaken, and as a result their students are misinformed and made vulnerable to legal prosecution and conviction if they rely on such misinformation in defending themselves.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Please elaborate. Unlike many if not most keyboard warriors, I am not only willing but am eager to be corrected by people who know more than I do.
One of the things that trainers do is encourage people like me to run “scenarios” in their minds. When I do that, my focus is on jeopardy and on making sure that I don’t endanger any bystanders if I have to use my firearm.
I’m interested in what you have to say, and especially in how to incorporate that into my practical thinking. Thanks in advance.
Please elaborate? Sure:
https://lawofselfdefense.com/law-of-self-defense-book/
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
It would be impossible for me to overstate how much I’ve relied on AOJ in my thinking about armed self defense. If I’m wrong, trust me, I really want to know. Again, I ask that your correction be useful and practical. You have absolutely gotten my close attention.
I’ve pointed you to the single most comprehensive book on the subject for lay persons, at a cost of less than $20.
If you’re genuinely interested, exercise some intiative and spend a modest sum to inform yourself. If not, that’s fine, too.
Good luck.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
You’ve done an effective job of selling you book to me. I just ordered it, along with the home state DVD. I hope this will give me practical and useful additional information. I’m going to go through the material that I just ordered for $68 and change, but I can’t memorize a law book. We shall see.
I’ve been and am now ever grateful for having trained with Mr. Branca. While varying jurisdictions will emphasize some elements more than others, there are FIVE elements to a self-defense claim made by a defender. And they are: Provocation, Imminence, Proportionality, Avoidance and Reasonableness. They must all be concomitantly met by Defender. Prosecution needs to disprove only one “beyond a reasonable doubt” and off goes Defender with a fresh jar of Vaseline.
For the absolute straight scoop on the multiple issues involved, then, for God’s sake, buy his book, subscribe to his site, and get the best self-defense education you can get from anybody, anywhere at any time and certainly for the pennies it costs to get it. Had Drejka done that, I’m betting he’d be enjoying the rest of his life with his children and grandchildren, and so, perhaps, would McG. (disclaimer: I do not get recompense from LOSD for recommending it).
Unless your trainer has acquired such training, he/she is NOT one you want to depend upon for LOSD training. And you sure as hell don’t want to depend upon somebody who is a former sandbox operator where the rules of engagement are entirely different as to civilians, or even LE, where also the rules of engagement of different in blatant as well as subtle ways compared with the private citizen.
And, NO, juries don’t recognize a “good shoot” when the see one; and, I know of two cases where otherwise “good shoot” actors are still in prison, and will be for the rest of their lives because they didn’t know WTF they were doing from a legal perspective.
I’ve ordered his book because the question of when I can legally exercise armed self defense is at the front of my mind.
Just glancing at those elements, and then thinking about how I live and the situations in which I can imagine I might have to defend myself with my firearm, the only one that I have immediate questions about is proportionality.
I will certainly read all of it, but I frankly think I have the other four of them covered both in daily behavior and the “scenario-izing” (hey, I just coined a word) that I do.
Here’s a question: My belief is that if an aggressor has drawn a gun in a robbery or other unprovoked attack, AOJ have been satisfied along with those other elements you’ve mentioned, and I’m free to shoot him. At that point my only worry would be the standard gun safety rule about making sure to know who’s behind the target or might cross your line of fire.
Am I correct?
For example, provocation and avoidance would be covered by the constantly repeated training advice to avoid arguments, altercations, and confrontations while carrying, and to de-escalate and leave the scene if possible.
If someone breaks into my house while we’re home, they’ll be staring down the barrel of a gun. To get into our place, you’d need to have objects that could be then used as weapons. We have sturdy doors and triple-pane windows, and everything gets locked up.
Where we live, the few home invasions are done by meth tweakers. An invader at our place would not want to move toward me after being ordered to get on the floor.
Imminence and reasonableness are covered by AOJ. The only missing piece to me is proportionality. I think this might be covered by AOJ too, but I’ll have a look.
How much self-defense insurance do you have? What is the political stance by the jurisdiction in which the shooting takes place as to self-defense? Has the Judge ever tried a self defense case? Is the DA up for re-election or promotion? What’s your Facebook, Instagram, Twitter, etc. presence? What’s your reputation in your community as to firearms? Etc., etc., etc., Why would you assume LE powers? Would you walk into the common area where robber was from an adjacent office and engage him? And bad guy doesn’t know you’re in there? And you take him out, but an errant round from his weapon strikes and kills a beloved teller who happens to be the daughter of the local DA? Are you sure your jurisdiction has a “felony murder” rule? Do you know what such a rule is? Quick Q for you? Do you know what “seeded backup is?” Are you sure you want your actions to turn the event into a shit storm?
Only the jury will have the power to determine if you are correct or not, Random Crank. I’m not arm-chairing this, either, because I know all to. well what the situation is like in the scenario you’ve described. Everybody went home breathing free air (such as it is), the perpetrator not so much because he was arrested long time after this incident in another jurisdiction. LOL LOL
I live in WA State, and the liberal insurance commissioner ruled that self-defense policies are illegal. So I can’t get one. On the other hand, WA State requires the state to pay the attorney of anyone charged but acquitted on grounds of self defense. And I’m in a rural county where male CPL permit holders outnumber eligible male non-permit holders. Plenty of women shooters and permit holders here too.
In the Florida case, the whole thing started when the shooter decided to try to be a parking law enforcer. You don’t do things like that when carrying. I very strongly doubt that I’d willingly enter a situation where an attack was in progress.
If I were in such a situation, I wouldn’t fire without a clear line of sight and knowing what’s behind the target. I load factory-made Hornady Critical Defense ammo in my 9mm carry pistol; I won’t say that overpenetration is never an issue, but it’s not likely to be one.
I know what “felony murder” is an am pretty certain that this is the law in both WA and OR. I don’t have a reputation in my community one way or another gun-wise. I’m only on FB, and when I talk about self-defense I emphasize AOJ and responsible carrying. I never heard of the term “seeded backup,” and an internet search didn’t yield anything, so maybe you can explain it to me.
Keep in mind that no one can reasonably be a walking textbook. I ordered the guy’s book and will read it, but the more I think about it, the more I think I have a good understanding. That said, if there’s something useful to learn, I’m all for it. The day you stop learning is the day you die, as far as I’m concerned.
In my opinion a big issue is that the woman got out of the car as her man was approaching. So now it is a 2-on-1 situation and the threat appears much greater. was this part of the defense argument? Does this justify the shooting? I don’t know. I just find it dishonest of the woman to claim she was in fear of her life and the safety of her kids, but she gets out of the car to confront. This fact also makes the prosecution argument regarding “protecting his wife and children” weaker. IMHO she she saw her man approaching from behind, knew a beat-down was about to commence, and wanted in on the action. There was no “fear” present for either of them.
Irrelevant. The case was about shooting a retreating man.
The defense brought up the girlfriend and a third person as potential threats to Drekja.
I think it just came down to the amount of time from when he pulled his gun to when he fired. I don’t remember the defense talking about how long it takes to make such a decision and how difficult it can be to stop that action based on new developments. That’s what I was interested in learning about.
time–distance–intent
believe the fact that D didn’t fire immediately speaks to his willingness to give M a chance to de-escalate the situation and also speaks to the fact that D was actually in command of his faculties at the time
regardless of M’s movements, to try and divine his intent from the video only is one hell of a stretch–M is dead and therefore we are unable to know for certain
2 or 3 meters distance is negligible in a street fight, especially when you’re on the ground in a defensive position and the attacker has previously assaulted you within the last few minutes
something, and cannot be discerned from the video because of the camera’s POV, prompted D to fire, either M’s movements, words, body language or possibly those of one or two other potential attackers
what was D thinking? what was in his mind and was it inconsistent with what a ” reasonable man “(or a juror)might think and feel in a similar situation?