Drejka Case Analysis: When the ‘Tueller Drill’ 21-Foot Defense is Defined Out of Existence
A mischaracterization of the Tueller Drill — the so-called 21 foot rule — deprived Michael Drejka of a potentially effective defense.
On Friday, August 23 , 2019, a Florida jury convicted Michael Drejka, the handicap parking spot shooter who killed Markeis McGlockton, of manslaughter.
As a result, at his September 10 sentencing hearing the 48-year-old Drejka will likely be sentenced to a mandatory minimum of 25 years to life in prison, without possibility of early release.
My problem with this outcome has nothing to do with the fact that Michael Drejka was found guilty—maybe he was guilty.
My problem with this outcome has to do with the process by which he was found guilty, a process in which justice in general and Drejka, in particular, were badly let down by both the state, by his own defense team, and by all the supposed use-of-force “experts” called by either side, with particular respect to the use-of-force doctrine knows as the Tueller Drill.
Whether Drejka’s shooting of McGlockton was lawful self-defense on the one hand or a criminal killing on the other always appeared to me rather ambiguous given the facts of that case. As a result, I believed reasonable people could arrive at either guilty or not guilty on this case.
That said, as a lawyer I strongly believe that if a person is to be found guilty and, as in this case, sentenced to spend effectively the rest of their life in a cage, the judicial process for doing so ought to be robust, and based on truth to the extent truth is identifiable, or at least not based outright lies.
Why? Because it’s what any of us would want for ourselves or anyone we cared about who was charged with a crime, especially as serious a crime as murder of manslaughter, especially in the context of a reasonable claim of self-defense.
In the conviction of Michael Drejka, however, we see a case in which a key issue — indeed, arguably the key issue — was corrupted by the prosecution in a way that gutted the very foundation of Drejka’s self-defense justification, and thus stripped Drejka of any hope of an acquittal. Sadly, it also appears unlikely that this will prove to be a viable basis for Drejka to appeal his conviction and his effective life sentence. For all this, I fault Drejka’s defense counsel who left (presumably through ignorance) their client to be vulnerable to this.
I also fault Dr. Roy Bedard, the purported use-of-force “expert” retained by the state. I’ve no idea what caused Bedard’s misinformation about a key defense. Whatever the cause, it ought never to have happened, not with an effective life sentence in the balance.
The Video
At this point presumably everyone reading this has viewed the surveillance video footage of the attack by McGlockton upon Drejka, throwing Drejka violently to the ground, Drejka drawing his pistol, McGlockton taking a couple of shuffling steps back, blading his body either to retreat or into a fighting stance, and Drejka finally shooting McGlockton. If you have not, here it is:
Reasonable people can agree or disagree on whether McGlockton was, indeed, turning away from the fight, and thus whether the attack on Drejka was over. Even if we assume that McGlockton was retreating, however, that alone is not decisive on the issue of whether Drejka’s use of defensive force was lawful.
One of the conditions for a defensive force to be lawful is that the force was used to stop a threat that was imminent, or about to occur right now (or, of course, actually in progress).
If the defensive force is used against a threat that is merely speculative or to occur at some indefinite time in the future, that threat is not yet imminent, and that use of defensive force against that threat is not justified. Similarly, if defensive force is used against a threat is completed and no longer a danger to the defender, that use of defensive force is not justified.
Only if the threat is actually in progress or is imminently about to occur—about to occur right now—can the use of defensive force against it be justified.
But there’s a further wrinkle that must be understood.
It is not necessary that the feared threat actually be imminent. It is only required that the feared threat be reasonably perceived as imminent. And that matter of reasonable perception is precisely the core legal issue in this case.
That is, the core legal issue in this case is not whether McGlockton was, in fact, retreating on the one hand or in fact remained an imminent threat on the other hand.
Rather, the core legal issue is whether a person in Drejka’s circumstances—to wit, having just been brutally blindsided by McGlockton’s unjustified physical attack and violently thrown to the ground in the parking lot, with McGlockton standing just a few feet away—could reasonably, even if mistakenly, have perceived McGlockton as a continuing imminent threat.
Note that “even if mistakenly” phrase, because it’s critically important. The law does not require us to make perfect decisions in self-defense. It requires us to make reasonable decisions in self-defense.
It is for this reason, for example, that the shooting death of an apparent aggressor “pointing” a cellphone can be perfectly lawful if it occurs under circumstances in which the cell phone could reasonably be mistaken for a gun. Similarly, if a realistic looking toy gun in the hands of an aggressor is reasonably mistaken for a real gun.
In that hypothetical was there actually an imminent threat posed by that aggressor? No, but that’s not what matters. What matters is whether the defender reasonably, even if mistakenly, perceived there to be an imminent threat posed by that aggressor.
If so, that use of defensive force was lawfully justified, regardless of the factual error.
Imminent Threat
Applying that legal standard in this case, the core question in this case is this: Did Drejka, in the context of the circumstance that had been imposed on him, reasonably, even if mistakenly, perceive McGlockton to be an imminent threat when Drejka used defensive force against McGlockton?
If so, the shooting was lawfully justified. And that is precisely the question intended to be answered by the criminal trial of Michael Drejka in the shooting death of Markeis McGlockton.
In order to answer that question, it is necessary, of course, to know whether McGlockton could, under these circumstances, have possibly constituted an imminent threat. A useful framework for evaluating imminence is something called the AOJ triad, and indeed this triad was broadly described, and correctly, described for the jury by the state’s use-of-force expert witness, Roy Bedard.
The “AOJ” acronym consists of ability, opportunity, and jeopardy, and the idea is that if a threat possesses all three of those characteristics it constitutes an imminent threat, and the use of defensive force against it is legally justified (assuming the other requirements of self-defense are also met).
On the other hand, if any one of the AOJ components is missing, then the threat, however real, is not imminent, and the use of defensive force against it is not legally justified.
In brief, the “A” of “AOJ” stands for “ability”: does the threat have the ability to cause harm. In fact, essentially everyone, and demonstrably Markeis McGlockton, has the ability to cause at least some degree of harm, so “ability” is effectively always present. The only real question is the degree of harm one has the ability to cause—mere non-deadly harm or deadly harm—and that’s a topic for another post.
At the tail of the acronym, the “J” of “AOJ” stands for “jeopardy” (some people prefer the term “intent”): Is the threat conducting itself in such a manner that one can infer an intent to cause the defender harm. In this case the fact that McGlockton had already thrown Drejka violently to the grown, and remained in close proximity, allowed for an inference of jeopardy. That McGlockton might have been turning away at the sight of Drejka’s gun, on the other hand, argues against jeopardy, but again that’s a topic for another post.
Most relevant to this post is the “O” in “AOJ”, which stands for “opportunity.” This refers to the issue of whether an apparent threat who has both the “ability” to cause harm to the defender and the apparent intent to place the defender in “jeopardy,” also has the “opportunity” to do so.
Generally speaking, the issue of “opportunity” only really arises in the context of impact weapons, and not in the context of, say, firearms. If an attacker has a gun, it’s the nature of that projectile weapon that if the attacker can see the victim they can fire at the victim, and thus have the opportunity to act on their ability and jeopardy to harm the victim.
On the other hand, what if the attacker has “merely” an impact weapon? (Note that innocent victims are murdered by the thousands in the United States each year with “mere” impact weapons, including “merely” fists and feet).
In that case, it is necessary for the attacker to get close enough to the victim in order to have the “opportunity” to harm the victim with that weapon.
If the attacker is yet close enough for that purpose, the attacker is too far away to have the “opportunity” to bring that impact weapon to bear against the victim, and lacking “opportunity” is not yet an imminent threat, and the victim would not yet be justified in using defensive force.
On the other hand, at some (as yet undefined) lesser distance the attacker will be close enough to have the “opportunity” to bring that impact weapon to bear, and along with the existence of “ability” and “jeopardy” the attacker is now an imminent threat against which the victim can justifiably use defensive force.
Obviously, then, it is of critical importance to understand at what distance an attacker armed with an impact weapon has come close enough to constitute an imminent threat. In particular, an attacker further than that distance would not yet constitute an imminent threat, and the use of defensive force against such a too-distant attacker would not yet be legally justified.
Tueller Drill — The 21-foot/1.5 Second Rule
It is here that what is commonly known as the “Tueller Drill,” sometimes referred to as the “21-foot-rule” or the “7-yard rule” becomes relevant, so some explanation of that concept is warranted.
The “Tueller Drill” was developed by a Salt Lake City UT police officer named Dennis Tueller, who was wondering about precisely this question—at what distance is an impact weapon bearing attacker demonstrating both “ability” and “jeopardy/intent” in close enough proximity to their intended victim that they now also have “opportunity,” and thus have become an imminent threat against which defensive force can lawfully be used?
Tueller naturally distinguished between the two possible outcomes in such a confrontation. In one outcome, the one we wish to avoid, the attacker successfully brings their impact weapon to bear upon the victim. In the other outcome, the desirable outcome, the defender is able to thwart the attacker’s attempt to bring their impact weapon to bear.
That more desirable outcome, thwarting the attack, typically involves the use of some defensive actions, which actions requires time.
All of this helpfully distills the relevant question down to the following: how much time is required for a defender to execute the defensive actions necessary to thwart the attack? Once that defensive time requirement is known, we by extension also know the relevant distance at which the attacker’s threat becomes imminent—it is whatever distance the attacker can cross in that same period of time.
Tueller did some empirical study of how long it took to deploy a service pistol from a holster and use it to effectively engage an impact weapon bearing attacker, and arrived at a figure of 1.5 seconds.
The distance at which that impact weapon bearing attacker becomes an imminent threat, then, is whatever distance that attacker can cross in that 1.5 seconds (or less). Once inside that distance, the attacker can strike the defender with their weapon before the defender can thwart the attack.
Through further empirical study, Tueller determined that most people can, from a static standing position, accelerate into motion and cross a distance of 21 feet in that 1.5 seconds.
The lesson is clear: An impact weapon bearing attacker has the opportunity to strike the defender before the defender can thwart the attack once the attacker is within 21 feet of that defender. Assuming that “ability” and “jeopardy” are also present, at that distance of 21 feet that attacker has, therefore, become an imminent threat against which defensive force is justifiable.
Imagine a prosecutor faced with a case in which a defender used force against an impact weapon bearing attacker, and in which the defender has raised the legal justification of self-defense.
It is the prosecutor’s burden to disprove self-defense beyond a reasonable doubt. This can be accomplished by disproving any one of the elements of self-defense beyond a reasonable doubt. One of those required elements is imminence, and one factor of imminence is opportunity. Finally, as already shown, a key factor in determining imminence in the context of an impact weapon bearing attacker is distance—to wit, that 21-feet distance.
In such a case, it is very helpful to the prosecution if the impact weapon bearing attacker is not yet within 21 feet. If so, the attacker lacks “opportunity,” if they lack “opportunity” there is no “imminent threat,” and absent an imminent threat there is no legal justification for the defendant’s use of force. Given that claiming self-defense effectively requires the defendant to concede it was he who used the force in question, stripping away the justification defense makes for an easy win for the prosecution.
On the other hand, if the impact weapon bearing attacker is within 21 feet, that presents a difficulty for the prosecution. Now the defense can argue, based on the Tueller Drill, that although 21 feet may appear to be too far to constitute an imminent threat, in fact, the Tueller Drill informs us that such a threat that is 21 feet (or closer) is in fact reasonably perceivable as a threat that is imminent.
What if the distance between the attacker and the defender at the critical moment defensive force was used was a mere eight or ten feet, as was apparently the case when Michael Drejka shot Markeis McGlockton? In that case, the doctrine of the Tueller Drill would suggest that an attack by the prosecutor on the element of imminence would not be likely to be successful.
Defining Away The Tueller Drill Defense
Unless … unless one could somehow convince the jury that the Tueller Drill did not apply to the particular facts of the conflict between Drejka and McGlockton. What if the prosecution could so greatly narrow the definition of the Tueller Drill that McGlockton’s conduct no longer fit? If so, the fact that McGlockton was well within the 21-foot distance identified by the Tueller Drill becomes irrelevant, and the Tueller Drill is no longer useful as a means to show the jury that McGlockton remained an imminent threat to Drejka at a distance of two or three paces.
Doing this, however, would require a definition of the Tueller Drill that was demonstrably false. How could any prosecution get away with communicating such a false definition of the Tueller Drill to the jury, regardless of whether that false communication on the part of the prosecutors was made intentionally or through ignorance?
Enter the prosecution’s purported use-of-force expert Dr. Roy Bedard, who provided a narrowed definition of the Tueller Drill, and the defense counsel of defendant Michael Drejka who, for whatever reason, did not seriously challenge this falsely narrow definition.
This narrowed definition of the Tueller Drill effectively removed the doctrine as a tool for explaining to the jury why Drejka’s perception of McGlockton as an imminent threat was a reasonable perception, even if mistaken. Absent that essential explanation convincing the jury of imminence became all but impossible, and the prospects for Drejka being acquitted on the basis of self-defense all but evaporated.
I suggest, based on my watching the trial via a Facebook live feed, that this falsely narrowed definition of the Tueller Drill, and the failure of the defense to seriously challenge that narrowed definition, led directly to Drejka’s conviction, and by extension to the 25-to-life prison term is will almost certainly be sentenced to next month.
Narrowed Definition of Tueller Drill Ignored Actual Tueller Drill
In what way did Dr. Bedard narrow the definition of the Tueller Drill to remove Drejka’s defensive force from within the scope of that doctrine?
Here’s how: Dr. Bedard defined the Tueller Drill as applying only where the attacker was armed with an edged weapon. He did so repeatedly, explicitly, and with emphasis, as I’ll show shortly.
Given that everyone stipulated that McGlockton was armed only with his fists and feet, and was not in possession of an edged weapon, narrowing the definition of the Tueller Drill to the context of attacks with edged weapons effectively took the Tueller Drill doctrine off the table for purposes of justifying Drejka’s use of defensive force.
This narrowed definition of the Tueller Drill could have been countered by the defense, had the defense challenged it. Unfortunately, the defense failed to seriously challenge this definition, despite plentiful opportunity to do so.
We know for certain that the Tueller Drill is not limited to the context of edged weapons, however, because the very source of the Tueller Drill, Dennis Tueller himself told us so. Tueller explicitly described the Tueller Drill as being relevant not just to edged weapons, but to impact weapons generally.
Indeed, Tueller told us so in the seminal article in SWAT Magazine in 1983, entitled “How Close is Too Close,” in which he introduced the Tueller Drill to the world. In fact, he first tells us so in the first sentence of that article, which is about as prominently as the point can be made.
Here’s that first sentence:
The “good guy” with the gun against the “bad guy” with the knife (or machete, axe, club, tire-iron, etc.). (emphasis added)
Guess what a club and tire-iron are not examples of? That’s right, they are not examples of “edged weapons.” They are examples drawn from the broader category of impact weapons generally.
Later in that seminal article we find this sixth paragraph:
With that in mind, let’s consider what might be called the “Danger Zone” if you are confronted by an adversary armed with an edged or blunt weapon. At what distance does this adversary enter your Danger Zone and become a lethal threat to you? (emphasis added)
Tueller Drill Applied Here
I suggest it is incontrovertible, based on the seminal writing on the doctrine by Dennis Tueller himself, that the Tueller Drill applies to impact weapons broadly defined, and not to the narrow scope of edged weapons only.
I caution the reader to recall that “impact weapons” in this context need not be limited to artificial objects—fists and feet are “impact weapons” for use-of-force law purposes when they are used as such to inflict physical force upon another, as would be a tree branch or a rock or anything else used in an offensive manner.
Again, several hundred people in the United States are killed each year by “mere” fists and feet used as impact weapons. Further, there is no dispute in this case that using his body as an impact weapon is precisely what McGlockton had already done to Drejka in violently knocking him to the parking lot asphalt, and arguably (for the defense) intended to continue doing.
I will also note that Teuller’s seminal article “How Close is Too Close” is readily accessible on the internet. Indeed, I just confirmed that the article can be found on the first page of search results when the terms “Dennis Tueller Tueller Drill” are Googled. You can find a link to that web page, and I’ve also included a PDF printout of that page here in case that web page goes astray:
Given how explicitly, and from the very first sentence, the article makes clear that the Tueller Drill concept applies to impact weapons generally and not just to edged weapons specifically, how it is it possible to define the Tueller Drill as applying only in the context of edged weapons?
Further, it was known to the defense team that the Tueller Drill would be an issue of this case, based both on the facts of the case itself but also because their client, Michael Drejka, had explicitly referenced the “21-foot-rule” in justifying his use of force to detectives after the fact. Yet they sat in the courtroom all but mute as Bedard defined Tueller Drill doctrine as applying only to edged weapons.
Is it possible that they themselves had not bothered to read even the first sentence of the seminal article that established the Tueller Drill as a use-of-force doctrine that for decades has been broadly taught to law enforcement and civilian defenders alike?
Is there any possible, imaginable “trial strategy” of the defense that would explain why it was beneficial to their client to have the Tueller Drill doctrine excised from his legal justification through this narrowing to edged weapons only, particularly given the facts of this case?
Is this the effective assistance of counsel to which the United States Constitution entitles all criminal defendants, including Michael Drejka?
It boggles the mind.
Impact of Narrowed Definition
Now, you may be thinking, well, sure Andrew, you’ve convinced us that the Tueller Drill doctrine, as described in the seminal article that established that doctrine itself, clearly applies to impact weapons generally, and not to edged weapons alone,.
But surely you’re exaggerating the extent to which Dr. Bedard narrowed the definition of the Tueller Drill, the extent to which the prosecution emphasized this narrowed definition and the fact that it did not apply to Drejka’s defense, and the extent to which the defense failed to challenge this narrow definition?
Sadly, I am not exaggerating, and I’ve got the courtroom video, and my own transcripts of that video, to prove it (both provided below). I watched the trial via Facebook video live feed. While it’s possible there was a challenge at sidebar or in chambers, in the courtroom in front of the jury the narrowed definition was not seriously challenged.
The first testimony on the “Tueller Drill” occurred during the direct examination of the state’s use-of-force expert Dr. Roy Bedard by Prosecutor Scott Rossenwasser.
Here’s the video:
Here’s the transcript of that video, with emphasis added in bold-italics as appropriate:
PROSECUTOR:
Now, in the defendant’s statement, he also brings up something that he calls the “21-foot rule.” Now, we’re going to talk in detail about it. First of all, have you ever heard that term before?
BEDARD:
Yes.
PROSECUTOR:
Is there such a thing as a “21-foot rule”? [Makes “scare quote” motion with fingers.]
BEDARD:
No.
PROSECUTOR:
Can you explain? [Judge interrupts with administrative question, which prosecutor addresses, then direct continues.] So, the “21-foot rule” is not really a rule, but you’ve heard of the terminology.
BEDARD:
Yes.
PROSECUTOR:
All right. What is it, what is the “21-foot-rule,” so to speak?
BEDARD:
A little history. 1983, a law enforcement officer from Salt Lake City, Utah by the name of Dennis Tueller discovers probably what you already know, and that is that there is such a thing as reaction time. And Tueller wrote an article in the SWAT magazine entitled, “How Close Is Too Close.”
Meaning, when you are addressing a threat, as a SWAT operator generally speaking, how close is too close before you would be able to react to a very specific threat.
And that threat is somebody with an edged weapon.
Fast forward to 1988, a company called Caliber Press produced a video called “Surviving Edged Weapons,” and they played out the “Tueller Drill”, which is what we refer to it as, using multiple trials, multiple officers, to examine what Tueller had concluded: that it takes time for you to be able to get your weapon out of your holster when you first identify a threat.
So when you first identify a threat, the assumption is, if that person is actively attacking, they are covering distance, how much space would you need to be able to actually address a knife attack, with a firearm. (emphasis added)
Obviously, you have to get the gun in your hand first. And I don’t know if you’re familiar with modern law enforcement holsters, but they are designed as safety holsters to keep the weapon in. There are a lot of interesting straps and snaps and blocks that’s configured into the design, that’s very specific to hold the weapon in if somebody grabs it.
And that’s good, except if you’re trying to quick-draw it takes you a little bit of time to get it out, you have to undo those straps and snaps and maneuver around those blocks to get the weapon out
It’s generally assumed that it’s going to take about 1.5 seconds. We’ve tested it, we’ve examined it several times.
So, that’s what the “Tueller Drill” was. It was an expression of how far back should we start pulling our weapon and addressing the threat, with two shots, in 1.5 seconds. And when they examined it, they generally said that it takes more than 20 feet.
This is all based on what we call a quarter-second reaction time. The ability to perceive something takes about 0.18 to 0.25 seconds. Your hand moving back [motions left hand to waistline as if reaching for a holstered handgun] takes about 0.18 to 0.25 seconds, grabbing the weapon 0.18 to 0.25 seconds, doing all the magic to release it 0.18 to 0.25 seconds, drawing it about a quarter-second, extending it and addressing the target about a quarter-second, so there’s about six things going on there, and if you multiply that by 0.25 you’ll come up with 1.5 seconds.
So, that’s what the drill was. And it has actually had a lot of influence on training both in the civilian environment and law enforcement. There are drills now that are conducted at what we call the 7-yard line, when you qualify, NRA courses, when you qualify for law enforcement.
There’s a moment when we will stand you 7 yards from a target, and give you 1.5 seconds to pull your weapon, and then address the target in that time frame. So that’s the test if you will.
But it’s not a “rule,” it’s really just sort of a healthy respect for understanding that if somebody is standing close to you, they may have an edged weapon, could do real harm before you could get your weapon out of the holster.
PROSECUTOR:
Just a couple of things, let’s talk about. So, one, this “Tueller Drill” was really designed for law enforcement.
BEDARD:
Yes.
PROSECUTOR:
OK.
BEDARD:
Well, by law enforcement, for sure.
PROSECUTOR:
OK, by law enforcement, really, in training law enforcement.
BEDARD:
Yes.
PROSECUTOR:
All right. And, you indicated something about the holster, a holster for law enforcement may be by design be a little more difficult to take a firearm out of.
BEDARD:
They are significant, significantly, sophisticated.
PROSECUTOR:
OK, and that would then factor into the timeframe.
BEDARD:
Yes.
PROSECUTOR:
All right. It sounds like what you’re testifying is that there’s three components of this “Tueller Drill,” which the defendant refers to as the “21-foot rule.” Correct?
BEDARD:
Yes.
PROSECUTOR:
OK, so the first component, would that be that in the drill the officer has not yet unholstered the firearm.
BEDARD:
Yes.
PROSECUTOR:
Can we write that [on large clipboard] as number one? So that would be the firearm still in the holster. [Bedard does so.] Number two, you were saying that in the “Tueller Drill,” the person that had the edged weapon was advancing. (emphasis added)
BEDARD:
Yes.
PROSECUTOR:
OK, so could you put that number two, that the person or aggressor however you want to say it, is advancing.
BEDARD:
[Writing] It’s critical that I include edged weapon, because that’s what the drill’s about.
PROSECUTOR:
OK, and that was when you, the third position, the third important part of the “Tueller Drill,” which the defendant referred to as the “21-foot rule,” is that the person that is advancing has an edged weapon.
BEDARD:
Yes.
PROSECUTOR:
OK, can you put that as the third principle, call it.
BEDARD:
[Writing] I’ll put “retains edged weapon,” because there’s some possibility that your appraisal may include that they dropped it along the way.
PROSECUTOR:
Now, common sense, “edged weapon” would be a knife?
BEDARD:
Yes.
PROSECUTOR:
Anything else that you could think of?
BEDARD:
Anything sharp. Screwdrivers, bottles, machetes, I suppose you could even argue a ball point pen, could puncture, slash, cut, in some way, that’s generally what we’re training the “Tueller Drill” against. (emphasis added)
PROSECUTOR:
OK, so, for example, you have to have all three.
BEDARD:
Yes.
PROSECUTOR:
So, if you don’t have [number] one [points to clipboard], the “Tueller Drill” or “21-foot rule” doesn’t even apply.
BEDARD:
Right.
PROSECUTOR:
If you don’t have number two [points to clipboard], [Tueller Drill] doesn’t apply.
BEDARD:
Right.
PROSECUTOR:
Don’t have number three [points to clipboard], [Tueller Drill] doesn’t apply.
BEDARD:
That’s correct.
By the way, under Florida law both sides in a criminal case have the privilege to question (take a deposition of) the other side’s expert witnesses. There is no way, then, that this testimony could have—or at least, no way it should have—surprised the defense at trial. They had plenty of opportunity, both based on their client’s own reference to the “21-foot rule” while under interrogation and based on their (presumed) deposition of the state’s use-of-force expert Bedard to be prepared to decisively challenge this false characterization of the Tueller Drill doctrine, and to catastrophically impeach Bedard as the use-of-force “expert” the state purported him to be.
So surely the defense spent some time on their cross-examination of Dr. Bedard on this narrow definition of the Tueller Drill doctrine to only apply to edged weapons? Especially given how vitally important the Tueller Drill was to explaining to the jury why Drejka’s perception of an imminent threat was arguably a reasonable perception?
The state spent about 48 minutes questioning Dr. Bedard on direct examination. Care to guess how much time defense law Trevena spent on cross-examination of Dr. Bedard?
Four minutes.
Care to guess how many of those four minutes of cross-examination were spent on the matter of Dr. Bedard’s falsely narrow definition of the “Tueller Drill”?
Zero.
That’s not a typo. Zero minutes. Zero seconds. The defense never so much as whispered a reference to this falsely narrow definition of the “Tueller Drill” that so thoroughly gutted the arguable reasonableness of Drejka’s perception of an imminent attack by McGlockton.
Think that’s bad enough? Wait, it gets worse.
What About The Defense Case?
The defense in this case retained its own use-of-force expert, Mr. Sean Brown. Mr. Brown runs his own security firm, is a former Marine, and has a variety of other use-of-force qualifications.
Direct examination of Mr. Brown was performed by defense lawyer Theresa Jean-Pierre Coy. Care to guess how many questions defense attorney Coy asked Mr. Brown about the “Tueller Drill”?
One. One question, on this doctrine that’s critically important to the defense. And even that one question was not at all substantive, nor leveraged to the credit of Drejka’s innocence.
COY:
“There’s some terms that have been brought up during this trial. Are you familiar with a term called the “Tueller Rule” or the “21-foot rule”
Brown:
“Yes.” [Mr. Brown then gives ~60 second a history lesson on the Tueller Drill, more or less accurately, but without ever clarifying that the doctrine applies not just to edged weapons but to all impact weapons.]
COY:
OK, now let’s talk a little bit about civilian concealed weapon training and law enforcement training? Are those the same thing? And excuse my inexperience and what not, can you explain that to the jury?
And with that, Attorney Coy left the subject of the Tueller Drill behind, never to touch upon it again, and moved on to other matters entirely.
In particular, there was nothing said by either Ms. Coy or Mr. Brown during her direct examination of him that connected the doctrine of the Tueller Drill to Drejka at all. Not to the reasonableness of Drejka’s perceptions, not to the reasonableness of his decision-making, nothing. Nor did any subsequent part of the defense case make any reference to this facet of Mr. Brown’s testimony.
In particular, the direct of Mr. Brown did absolutely nothing to correct the narrow definition of the Tueller Drill as repeatedly stated and emphasized by state.
Did the defense not know that Dr. Bedard’s description of the Tueller Drill was badly mistaken, and mistaken in a manner devastating to their client? Again, had they not even read the first page of the seminal article on the Tueller Drill written by Dennis Tueller himself? Did they read it and not understand the significance? Was there some trial strategy that justified not addressing the state’s mischaracterization of the Tueller Drill? If so, I can’t imagine what it could be.
Mr. Brown’s testimony on the Tueller drill was literally, simply a one-minute history of the Tueller Drill with no connection drawn to the actual facts of this case, and no particular relevance to it, and in no way clarifying the misinformation previously provided to the jury by the state. As near as I could tell it served no purpose whatever. It may as well have been random information shared with the jury for no particular reason.
But where the defense appears to have dropped the ball, the state prosecutors saw an opportunity, and they grabbed it with both hands on cross-examination of Mr. Brown. Cross was performed by Prosecutor Fred Schaub, who almost gives away the huge advantage on this issue that the defense has handed him.
Prosecutor Schaub repeats the notion that the “21-foot rule” applies only to edge-weapons, and is promptly pushed back by Mr. Brown, as we see in the video and transcript of this exchange below.
SCHAUB:
Let’s talk about the “21-foot rule.”
BROWN:
OK.
SCHAUB:
Because you listened to his [police interrogation], Mr. Drejka’s, “the 21-foot rule, the 21-foot rule, the 21-foot rule.” Right?
BROWN:
Yes.
SCHAUB:
As a justification for what he did. Correct?
BROWN:
I say that was a justification, but he did use that terminology.
SCHAUB:
Right.
BROWN:
Yes.
SCHAUB:
You wouldn’t say it was a justification, because let’s talk about the “21-foot rule.” It deals with a person advancing towards another person. Correct?
BROWN:
Correct.
SCHAUB:
It deals with, it’s a scenario where the officer has a firearm.
BROWN:
Yes.
SCHAUB:
And, he has not pulled out that firearm yet.
BROWN:
Correct.
SCHAUB:
And, the perpetrator has a sharp-edged object.
BROWN:
Negative. It can be any form of weapon. Or that individual just being aggressive on his own, himself.
SCHAUB:
Sir, the Tueller Rule, the “21-foot rule,” deal with someone with a sharp-edged weapon.
BROWN:
Not necessarily true, sir.
SCHAUB:
All right, we’re going to differ on that, OK?
So, the good news in this exchange (which good news doesn’t last long, as we’ll see) is that Brown pushed back on the notion that the Tueller Drill requires that the attacker be armed with an edged weapon.
Unfortunately, because this is cross-examination and it is the prosecution who is setting the scope of the exchange, Prosecutor Schaub is free to tactically retreat from this blunder as soon as he sees it’s not going his way. On direct, the defense could have expanded on this correction relentlessly, but of course on direct the defense didn’t touch upon any correction at all.
Conversely, the bad news in this exchange is that it allowed the state to introduce two additional misconceptions about the Tueller Drill, both of which if believed by the jury would appear to invalidate that applicability of the Tueller Drill to the facts of this case.
One of those additional misconceptions is that it applies only where the aggressor is actively advancing, and the other is that it applies only in circumstances where the gun is still holstered.
In fact, the Tueller Drill obviously applies where an aggressor could advance, not just when they are advancing. The Tueller Drill, after all, begins with the mock-aggressor in a standing still position.
Second, the lesson of the Tueller Drill is the relationship between speed of attack, and thus distance that can be crossed, relative to speed of defense. Having a gun already out of the holster doesn’t eliminate the lesson of the Tueller Drill, it merely adjusts the speed of defense from the 1.5 seconds of the holstered pistol to some lesser time span (perhaps 1.0 seconds). The fact that the gun is in the hand doesn’t reduce reaction time to zero, it merely reduces reaction time to something less than when the gun starts from the holster.
Neither of these misconceptions is corrected by Mr. Brown, in part because he appears ineffective at differentiating between how the Tueller Drill is demonstrated as an exercise and how the lessons of the Tueller Drill are applied in practice.
The cross-examination of Mr. Brown then proceeds on to other topics, before circling back around to the Tueller Drill again about 15 minutes later, and again it’s not helpful to the defense:
SCHAUB:
All right, the Tueller Drill. [Schaub now has some papers in hand, brought to him by Prosecutor Rossenwasser, but they are not here identified for the court.] My partner here got me these, because I wanted to have you take a look at that. [Hands the papers to Brown.]
BROWN:
Sure. [Looks over papers.] I’ve seen this already.
SCHAUB:
And in that scenario, and in every scenario—every scenario—it deals with an armed assailant.
BROWN:
Correct.
SCHAUB:
All right. So it deals with somebody with a sharp-edged object.
BROWN:
Correct.
SCHAUB:
Not an unarmed man.
BROWN:
[Pauses.] Well, it depends. It depends on the individual’s level of training, as well. Here’s a good example, my level of training could be totally different than everybody else’s level of training here in this room.
SCHAUB:
But the Tueller Rule is the Tueller Rule.
BROWN:
Would you consider an ink-pen a weapon?
SCHAUB:
I don’t know. A sharp-edged object?
So, here we have Brown again pushing back on the notion that the Tueller Drill covers only edged weapons, but ineffectively. When he seeks out an example to illustrate his point he comes up with—a pen that could arguably be used as a sharp weapon.
Which, of course, McGlockton also didn’t have on his person at the time he was killed, so it’s in any case as irrelevant to the facts of this case as a hypothesized knife would be.
After this there’s a bit more cross by Prosecutor Schaub, then some re-direct and re-cross, but nothing that ever again touches on the Tueller Drill for the remainder of the trial.
At least, not until closing arguments.
Closing Arguments To The Rescue? (No)
At the end of the trial, after both sides have presented all their evidence, we have what are called closing statements or arguments. This is where both sides have their final opportunity to share their narrative, their story, of the case with the jury. The prosecution naturally tells their story of guilty, and the defense their story of innocence (or, at least, lack of guilt beyond a reasonable doubt).
For these stories to be compelling they must naturally emphasis the evidence and arguments that most effectively and powerfully align with those narratives.
The way Florida manages closing statements is that they allow the state to speak first. Then the defense gets to make their closing statement. Finally, the state gets to rebut or contest the defense closing.
The state’s initial closing statement was presented by Prosecutor Scott Rossenwasser, who you’ll recall conducted the direct examination of the state’s use-of-force expert Dr. Roy Bedard.
Are you wondering if Prosecutor Rossenwasser thought it was important in his closing to once again argue to the jury that the Tueller Drill doctrine could not justify Drejka’s shooting of McGlockton because Drejka himself was mistaken in thinking the “21-foot rule” (as Drejka refers to the “Tueller Drill”) applied to his encounter with McGlockton?
Wonder no more:
ROSSENWASSER:
Then, as justification, and again, you’re going to watch the entire [police interrogation] video again yourself [in deliberations], OK, [Drejka] doesn’t throw the “21-foot rule” there just to say it. [Drejka] says it because it’s relevant to him. Because he doesn’t know what the rule is doesn’t mean Markeis pays for it with his life. Think about that. [Drejka] doesn’t know what the “21-foot rule” is, and Markeis is dead. That’s not justifiable use of deadly force. You can’t do that. You can’t be mistaken and kill somebody.
After Prosecutor Rossenwasser was done with his closing the defense got to present its closing statement. This was done by defense attorney John Trevena. I’ll come back to this in a moment, because first I want to address the state’s rebuttal that followed the defense closing.
The state’s rebuttal was presented by Prosecutor Fed Schaub. Are you wondering if Prosecutor Schaub thought it was important in his rebuttal to argue to the jury that the Tueller Drill doctrine, referred to here as the “21-foot rule,” could not justify Drejka’s shooting of McGlockton because the Tueller Drill applied, as per “expert” Dr. Bedard, only to edged weapons?
Wonder no more:
SCHAUB:
It’s not reasonable. What [Drejka’s] saying isn’t reasonable. The “21-foot rule” he relies on as justification for doing this, and the rule doesn’t even apply. The rule doesn’t even come into effect. Because the man’s retreating, number one, the man has no weapon, number two … the “21-foot rule,” everybody said this, and [defense use-of-force expert] Mr. Brown is a nice man, but the “21-foot rule” is somebody with a sharp edge coming towards you.
What about the defense closing statement? Surely they spent some time on addressing the fact that, per the Tueller Drill doctrine, Markeis McGlockton was more than close enough to the downed Michael Drejka to present the reasonable appearance of an imminent threat?
The defense closing consumed about 70 minutes, excluding various breaks. Care to guess how many of those minutes were spent countering the state’s narrow definition of the Tueller Drill?
Zero minutes. Zero seconds. Wasn’t even mentioned.
The jury was allowed to go into deliberations convinced—and why not, it seemed all sides agreed—that the Tueller Drill, so essential to any claim that Drejka’s perception of an imminent attack by McGlockton was reasonable, simply did not apply to the facts of this case, because the doctrine (they were told) only applied if McGlockton had possessed an edged weapon, and McGlockton clearly had no such weapon.
That, folks, is not justice. It is a travesty of justice.
Travesty of Justice
If it sounds like I’m offended at these legal proceedings, that’s because I am. And I’m offended not over any particular personal interest in Michael Drejka. I have no personal interest in Michael Drejka. Perhaps Drejka would have been convicted even without this inappropriately narrow definition of the Tueller Drill, and the outcome would have been the same.
In that case, however, he would have been convicted justly. This conviction, based on this misstatement of a possible defense, and without any substantial challenge even by the defense, is not a just conviction.
Maybe that consequence is deserved by Mr. Drejka, and maybe it’s not. But this travesty did not justly make the point either way. And that’s wrong.
Drejka deserved better justice than what he got in his trial, not because he’s Michael Drejka, but because all of us, even the very worst of us, deserve better justice than this.
SALE! Law of Self Defense “Self Defense Insurance Explained” Course!
Before I go I thought I’d let you all know that our analysis of this case has led me to do another sale on one of our more popular courses, “Self-Defense Insurance Explained.” I provide a lawyer’s perspective on the various “self-defense insurance” programs out there, explains what features are important, which ones aren’t, which ones may be a personal preference, and which ones must be absolutely avoided under any circumstances.
Our goal with this “Self-Defense Insurance Explained” course is not to convince you to choose any particular of these programs—although we are, of course, partnered with one of them, CCW Safe, my personal choice for myself and my family—or even to have you choose any program at all. It’s simply to help you make an informed decision about whether to choose one at all, and if you’ve decided to choose one, knowing how to choose the one that best fits your circumstances.
http://lawofselfdefense.com/insurance
Remember:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
This would be more compelling if the “Tueller Drill” was written into law, but it isn’t, it’s still just a legal theory. What the Law says is “reasonable”, and it’s up to each particular jury to decide for itself what was “reasonable” in those particular circumstances. A good defense attorney should try to convince the jury that the Tueller Drill should apply, but it’s still just an argument, nothing more.
I watched that video, and I think the shooting was unreasonable, and if I had been on that jury, no amount of academic argument and experts testimony would have changed my mind. I’d have voted to convict him of murder, just like that jury did. (Ok I probably would have favored Manslaughter)
It isn’t a “legal theory”, it is a name applied to the description of an observable and repeatable physical event (for lack of a better description). It has been proven correct over and over in numerous law enforcement (and non-law enforcement) training classes each and every year since 1983.
You also make the common mistake of believing you can substitute your Monday Morning Quarterbacking judgement for what the defendant believed in the instant he was faced with the situation. You haven’t been blindsided and knocked to the ground by a much younger, larger and (presumably) stronger adversary. Easy to come to your decision as to his guilt by watching a few seconds of video from a single perspective which does not show all the angles and certainly does not contain evidence such as facial expression of, or even possible statements made by, the attacker.
You also make the common mistake of believing you can substitute your Monday Morning Quarterbacking judgement for what the defendant believed in the instant he was faced with the situation.
Isn’t that what every jury that has ever listened to one of these cases is asked to do? We’re considering here whether the Jury’s decision was “Just” – and that hangs on whether or not the Jury thought that Drejka’s actions were “reasonable” under the circumstances. The Jury found that his actions were NOT reasonable. I agree with the jury.
The problem with the “21 Foot Rule” as presented here is that it would allow anyone to murder someone within 21 feet of them at any time, even if that person was unarmed, as long they could claim they “felt threatened”. That is madness.
As a daily concealed carrier with three permits, I find this write-up to be laughable verbal masturbation that has utterly no relevance. Drejka shot an unarmed, retreating man. No jeopardy, no self defense. The rest is whipped cream on dogs*** in my opinion. This doesn’t mean that I somehow approve of the dead man’s shove, but Drejka had no reasonable grounds to shoot him, period.
Suggest that instead of putting a loaded gun in your concealed holster, that instead you put a hot dog that will do you just as much good when threatened with deadly force. Or better yet, leave both the holster and hot dog at home. You obviously are slow to realize AOJ. Sometimes showing that you are armed is enough, and sometimes not. The old standard in Florida was that you had to demonstrate you retreated. But even here, Drejka was unable while on his knees and on the ground.
The mistake Drejka made was saying anything to McGlockton’s girlfriend because some people cannot take commentary without reacting violently; they are angry, disrepectful, and mean. It’s best to just steer clear of them or call law enforcement and hope they show up. Inside your house and uninvited, not need for AOJ or Tueller Rule.
From the perspective of the camera, I think it is possible to debate whether the attacker was retreating or regrouping for another attack.
The issue here (whether self-defense or manslaughter) is the perspective of the attacked person who is on the ground. Cameras do not know about the fear in the mind of someone who has been out of the blue. The attacker was not shot in the back while running away.
If someone throws you to the ground for no reason and they are still breathing, they are still a threat.
Sorry, “No reason”? Implying that you would react in a perfectly calm way, dare I say passively, if some stranger was aggressively engaging your significant other in a verbal argument? I suppose, if you were in the place of the deceased, that you would observe from a safe distance and let your wife fend for herself? If your answer isn’t an unequivocal “YES!” then you cannot characterize the actions of the deceased like you have. I swear, you’re acting like Drejka had a right to start the confrontation. We all know the situation would have been radically different if he hadn’t initiated the confrontation, so don’t pretend otherwise.
If Drejka had minded his own sweet business and let the store or code enforcement handle someone without handicap tags taking the wrong spot, he’d be a free man today. That’s not to say that one should turn a blind eye to crime, but the law stipulates the level of the offense other citizens can stop, and parking violations are far below that threshold. The jury had to look at the whole case, and they saw that Drejka initiated the confrontation and then shot one of the parties when it turned against him. That’s not justified self-defense anywhere that I’m aware of, certainly not in my state of Colorado. This moron was in trouble either way.
You have no right to do anything else. If you would not, then you are a criminal.
He did.
So what? You’re exactly the same as the guy who says “If she’d kept her mouth shut I wouldn’t have had to smack her”.
The way McGlockton stands, with his feet evenly spaced, about should-width apart, appearing to have his balance shifted slightly forward onto the balls of his feet, is a classic “ready stance” even though he doesn’t have his hands up. That is a position from which a trained fighter can strike very quickly. Even the turn of the hips suggests to me that he’s contemplating a kicking attack.
Please, what other kind of stance would M be in? He is facing a person armed with a distance weapon. He is going to be in a ready stance, which is equally useful for fight or flight. His pivoting turn to the right is also a natural movement for someone who is turning away to move in another direction. It does not necessarily signify any intent to attack. Finally, placing his left foot where he did would not have allowed M to reach D with a kick. He wold have to move at least one more half step toward D to be able to reach him. No, unless M made a move directly at D, there was no clear indication of imminent attack.
What other sort of stance would he be in? I’d have my hands up in the universal sign of “I surrender” and I would be on my heels backing up.
He had backed up as far as he could. He was back against his girlfriend’s car. He turned to his right, which would have been a lane of escape or further retreat and was shot.
Running away as fast and far as possible.
How about running like hell with back turned?
The SOB got what he deserved and convicting a man of defending himself is a travesty of justice.
Not one person on this board or anywhere else knows what McGlockton intended to do. Not you, not I, no one. We know what he had just done and that he was within distance to continue the damage.
The indications of another imminent attack by McGlockton were:
1) he had seconds before just made an unprovoked violent attack, and
2) his body language, in the face of a handgun reasonably pointed at him, in no way clearly communicated submission or withdrawl. (Note the contrasting body language of the man who followed McGlockton out of the store — upon seeing the handgun drawn he quickly switched course and hurried away from being anywhere downrange of the weapon.)
Thanks for a through analysis, which has confirmed my impression that the verdict was not justice.
I generally believe that with adrenaline being pumped out like crazy and split second timing of these situations, that a person who is assaulted is at a serious disadvantage.
I also have seen numerous people claiming that McGlockton was killed over a parking place, when in reality he was killed for assaulting someone. Glossing over assaults has been common.
Informative and educational Andrew. Thanks.
The instructor for an Arizona and Utah CCL class demonstrated the Tueller drill though I didn’t catch the name at the time. He easily closed the 21 feet in under 2 seconds and not a single student was able to draw their weapon before the instructor was all over them (with a pool noodle). I reckon even that demonstration mischaracterized the drill … McGlockton could easily have kicked Drejka in the head while on the ground and even more vulnerable. Such a kick could have been fatal.
There is a question I hope you will address in the series. It has to do with something every CCL instructor I’ve had says about the inherent responsibilities of CC. In essence, CC means exercising greater restraint since the weapon has the power to end a conflict in death. With that in mind, Drejka would seem to have been an aggressor – an armed aggressor (though concealed) – when he confronted the woman in the handicap parking space. He’s not a law enforcement officer – so what business (standing) does he have to confront the woman for parking illegally? Just seems like he bears some responsibility for the situation by attempting to police the situation without the authority to do so.
Again, thanks for the informative post.
MrE,
I agree that any type of carry places on obligation on the person who is carrying a firearm to use responsible judgement. No one should ever believe that carrying a firearm gives an automatic right to use it. Nor should one be more aggressive towards the folks they encounter in daily life because they are carrying.
Where I do disagree with you is your contention that by carrying you are somehow required to disengage from interaction with folks. Now in the case of Drejka, all he needed to do is tell the folks in the car that they were parked in a reserved handicapped space. Maybe take a photo indicating the licence plate. In some states you can send that photo to the PD and they will issue a citation to the registered owner for that violation.
Drejka appeared to try and argue the point. Not a good idea. Just say ‘ you are illegally parked in a handicapped space’. Then move on, no point in being drawn into an argument. Take a photo and go on your merry way. Then the issue of carrying does not come to the fore, because M wouldn’t have come out of the store and shoved Drejka precisely because Drejka would not have been present to be shoved.
Again, IMO, you do not have to walk around cowering because you are carrying but you don’t walk around like a Billy Jack wannabe either. Just go about your normal day without looking for trouble.
CC – I agree with your observation. The basis of my question is whether Drejka felt emboldened to confront / combat the woman because he was carrying? In so doing he showed poor judgment which potentially provoked the man who felt he was defending the woman.
If all Drejka saw was the woman in the car, how did he know she wasn’t handicapped? If he saw the man get out of the car and walk in, the woman might still be handicapped.
Drejka will no doubt spend the rest of his life wishing he’d have simply pointed out the wrong and then walked away.
MrE,
Overall I agree. Don’t allow possession of a firearm to be an intoxicant. Just as consumption of alcohol makes some people feel ten feet tall and bullet proof, Don’t mistake possession of a firearm for super powers or authority. Just go about your day with the confidence that you can meet a threat if it presents itself. No more no less.
As to illegal handicapped parking; no placard or handicapped license plate was displayed without which they were illegally parked. I am a disabled veteran so I routinely remind folks that those spaces are reserved. Only about 1 in 20 responds with anything other than an apology and move the car. For the rest I just take a photo and tell management of whatever business I am going into.
You would be better off minding your own business instead of trying to play Super Meter Maid!
I spent 4 years living with and taking care of my father, who was disabled and had state-issued handicap parking credentials. A time or two I got dirty looks when I parked in a handicap space at the pharmacy while bringing Dad home from a Dr. appt. They saw a healthy guy jump out of the truck after displaying the placard – then apparently figured it out when they saw Dad remain in the truck. Because of that I try not to jump to conclusions when I see someone park in one.
I once yelled at a lady who’d parked in a handicapped spot (with a placard, but those are abused) and walked normally toward a store on a hot day. She told me that she had multiple sclerosis and the heat was a problem for her.
I knew it to be true at the time about MS, and wound up apologizing as profusely as I ever have. Told her I was not only sorry but learned an important lesson about keeping my mouth shut.
“learned an important lesson about keeping my mouth shut”
I see evidence contrary to this.
Even seeing the man there was no way to know if he was deserving of the handicap spot or not. No way to tell if he had a heart condition or some other invisible disability that limits the distance he can safely walk.
One look at the license plate tells anyone rather the care belongs there.
Plenty of handicapped people have placards and not license plates.
ChrisMallory,
You are certainly entitled to hold and express your opinion, as am I. You are not entitled to distort facts.
In most states parking in a handicapped space requires either a licence plate with that designation or a placard and the presence of the person who was issued either of those items. The absence of which means you are illegally parked in a space reserved for handicapped persons.
Your comments related to my disclosure of informing folks who violate that law that they are illegally parked seems to indicate the reaction I receive about 5% of the time. That it is my fault that you chose to illegally park and you don’t want me to take a photo proving it. Mostly because you know you are wrong.
Thanks for sharing your opinion.
No, he was not an aggressor, any more than George Zimmerman was. Speaking to someone is not aggression, following someone is not aggression, and possessing a concealed weapon doesn’t somehow turn it into aggression.
And where did you get the idea that remonstrating with wrongdoers is only the business of the police? Surely it is every person’s right, business, and duty. Certainly no authority is needed for it.
Finally, a voice of reason within this subthread. Thank you.
Drejka initiated the contratemps. It wasn’t his first time doing it in that location, nor was it the first time he’d pulled a gun there in an argument over the handicapped spaces there.
We can argue about the victim’s action; was that shove done because he perceived that Drejka was attacking his partner, or was it overly aggressive, or maybe both? What is inarguable, from the history prior to the incident that culminated in the shooting, is that Drejka had arrogated general police powers to himself and had brandished his firearm to get his way.
In the end, I rely on what seems clear from the video: That no matter what had happened before he pulled the trigger, Drejka did not have a reasonable fear of imminent death or personal injury — the “jeopardy” in the AOJ taxonomy.
http://www.corneredcat.com/article/legal-concerns/ability-opportunity-jeopardy/
The author has his own idiosyncratic five-step taxonomy. More power to him and the book sales that flow from it. Near as I can tell before his book arrives here and I read it, there isn’t a lot of difference between his taxonomy and AOJ + “don’t get involved in arguments or fights if you’re carrying, and especially don’t be the one who starts them.”
In any case, there is no “21 foot rule” in the law. It’s a guideline intended to show people in this or that training class that an assailant with a knife (and obviously a different non-firearm weapon) can get to you quickly. Whatever he or anyone else wants to think, it is not a license to shoot, and not a substitute for jeopardy, period.
“don’t get involved in arguments or fights if you’re carrying, and especially don’t be the one who starts them.”
Actually having taken Andrew’s class from the man himself I can tell you that he has a very succinct way of communicating just that.
Andrew forgive me if I paraphrase somewhat from your actual words.
But he told us; “Carrying a firearm for defense doesn’t mean you don’t have to take shit from anyone. It actually means that you have to take shit from almost everyone.”
Drejka initiated a verbal argument, as he had every right to do. McGlockton initiated the physical confrontation, which he had no right to do, and at that moment there is no dispute that Drejka had every right in the world to defend himself with deadly force. The only dispute is over whether he still had that right at the moment he fired.
to remove himself from the zone of combat, Drejka would have had to daisadvantage himself using one hand or the other, allowing McGlockton to repeat his performance or worse, kicking the weapon out of Drejka’s hand.
Forgetting all the rules and drills, the question before the jury should have been:
what would a reasonable, but greatly frightened man on the ground have done?
Um, nobody has ever suggested that Drejka either could or should have removed himself from the zone of combat.
I used the term aggression in the sense of pushing the issue and not backing down. Perhaps I should have used the word “asserting” or “pressed the issue” over “aggression”? Regardless, it boils down to 3 people who refused to back down. At the end of the day, a man is dead, another is going to prison, a woman is widowed, over a parking violation …
For perspective on whether ordinary citizens have law enforcement authority over public misdemeanors – not far from me in the streets of Portland, imagine confronting an antifa for jaywalking while the cops simply observe from a block away. Whom do you think the cops will detain and/or remove?
I’m not saying that’s right, nevertheless what’s happening there sends a clear message about ordinary citizens attempting to do the job cops won’t do. Where we’re talking about driving/parking infractions – in the town where I live there’s automated speed displays on public streets – some have traffic cams from which citations are issued. Despite the technology, I’ve never seen a police cam monitoring a handicapped parking space. That I’ve seen, cops do not police them – perhaps because most of them are on private property – places of business. As such it seems like enforcement action would normally originate with the property owner, or with a handicapped person deprived of a designated parking space. Beyond pointing out the wrong, what business was it of Drejka’s to continue to press the issue?
Yes, you should have, because aggression justifies defense. Assertion, or pressing an issue, does not. McGlockton was the aggressor here, not Drejka.
It’s exactly the same as happened with Martin and Zimmerman, where people claimed that Zimmerman was the aggressor and Martin was defending himself. It’s not true, because — even taking the most skeptical view of Zimmerman’s testimony and interpreting the evidence in the worst light for him — what he did was completely within his rights and not aggression. Therefore Martin was the aggressor, and Zimmerman the defender.
Okay, I’m going to call lawyer BS here.
First of all, “impact weapons”, such as clubs, batons etc. can be, and routinely are, classified by state case law as being “dangerous or deadly weapons”, even though not classified as such under statute. Hand and feet are NOt so classified. Hands and feet CAN deliver what is considered deadly force, if the blow is directed to certain points on the human body. So, the only relevancy to the Drejka case, which thee fact that McGlockton only had his hands and feet, as weapons, brings to case, is that Drejka was not facing an attack with a deadly weapon, which would have automatically justified the use of deadly force.
Next, the Tueller Drill is used to ILLUSTRATE the amount of time it takes a person to cover a distance of 21′ from a standing start. Tied into that is the illustration of reaction time of the defender. This drill is almost always run with the pistol holstered at the start, which requires it to be drawn, aimed and fired. In the case of Drejka, he already had his firearm deployed. He did not have to draw, aim and fire it. So, even if Drejka had the reaction time of a sloth, and took a whole .50 second to make up his mind to shoot McGlockton, M would still not have reached him for at least a second, after he fired.
Now, the main reason why Drejka could not use the Tueller Drill, as a viable defense, is because he did not react as he should have been taught to react in the case of an attacker charging from close range. Drejka fired a single shot. Normally, this would not have been sufficient to stop McGlockton, was he mounting a charging attack. In fact, it did not stop McGlockton who was able to run all the way back inside the store, before he collapsed. If Drejka had been trained to respond to a Tueller situation, he would have fired multiple times. He did not. Now, it is possible that he could have claimed familiarity with the Tueller Drill, but not training in the appropriate response. However, he chose not to make any attempt to explain his actions in court. Also, the 21 foot rule still requires that the assailant be armed with a deadly or dangerous weapon in order to automatically justify the use of deadly force in response. Simple hands and feet are not considered dangerous or deadly weapons.
Drejka lost because he either jumped the gun, when McGlockton turned to his right, and fired before it was clear that McGlockton was going to attack him or because he decided to simply shoot M. M had clearly retreated. He was not clearly moving in the direction of D. And, M was not displaying any dangerous or deadly weapon. D should have waited a heartbeat or two before he pulled the trigger.
“…call lawyer BS here.”
Are you a lawyer? Might explain your pettifogging.
You’re criticizing the guy on the ground, who had just experienced an unprovoked violent criminal attack because he only fired one round? Obviously that was enough to stop the continuation of the attack, because he was not attacked again, and the attacker left, and he did not see a need to empty the magazine into his attacker. As he should have been taught? You’re going to remove his defense because of a supposed lapse of his instructor?
You need to step back and breathe deeply.
I’m getting real tired of people trying to make excuses for Drejka. He was WRONG. He was NOT justified in using deadly force in self defense. NOT, NOT, NOT. He was shoved. He fell to the ground. He sat up, immediately drew his pistol and pointed it at McGlockton, who was backing up all the way to his girlfriend’s car. Approximately three seconds after D drew his weapon he shot M, as M was turning to his right. M never made a movement toward D. Now, to further D’s problem, M was not armed with a deadly or even dangerous weapon. So, the use of deadly force, in self defense, was not automatically justified, even if M was moving toward him, in a threatening manner. What is so hard to understand, here?
The shot did not stop any attack, because there is NO EVIDENCE that any further attack was imminent. However, if M had been charging D, the single shot would not have rendered him incapable of striking D. M managed to run into the store before he collapsed. When an attacker is very close and moving toward you, and you are justified in using deadly force, you strike the assailant as many times as possible, as quickly as possible to stop the attack as soon as possible. You do not fire a single shot, unless you only have a single shot weapon. You continue firing until the threat is neutralized. But, having no training in self defenses, you wouldn’t know that.
Now, whether you like it or not, your actions are always subject evaluation, especially if those actions result in the death of another human being. Your actions have to be correct and legally justifiable. If YOU are not prepared to make the correct action then YOU will suffer for it.
He was justified because he was violently attacked and knocked to the ground. The attacker was then within about 10 foot and could quite easily have attacked again. There is no evidence he would retreat, no hands up, no running like hell, nothing. Just an initial reaction. That’s it. Everything else you say is BS.
Every time you write you use a misleading description, that D was “shoved”. Not using the correct description is misleading and you know it. It’s you who are wrong.
More people are killed with hands or feet than by blunt objects such as a hammer, rifles, or shotguns. Knives or “edged” weapons are responsible only for double the number of deaths by hands and feet.
One kick to the head of a man on the ground would likely result in severe injury or death.
If D did not have the right to self defense then no one does.
If you are going to use statistics to prove a point, you have to place those statistics in context. Hands and feet are used in many, many times more frequently in physical attacks. Yet, they actually produce the least number deaths per attack.
Again good try.
The question is, was the threat neutralized? Did the attacker back away or did he advance towards the victim? You can still be a potential threat while you’re backing up but you’re not an active threat until you advance again. With a pistol in your hand, ready to shoot, you have an edge on the “threat” and you’re expected to exercise good judgement.
“Yet, they actually produce the least number deaths per attack.”
Doesn’t matter. A man laying on the ground getting kicked in the head is going to be severely injured or killed. Any sane person that is armed would use their weapon to stop that.
Which is precisely what happened here.
Let me start by saying I don’t believe that Drejka should have shot. But I do agree with Andrew’s post, if the Jury did not have the correct information then it wasn’t a just verdict.
What I want to ask you to do is watch the video with a fresh eye, don’t slow it down or frame by frame it, just watch. I rewatched it again this morning because of your comments. Here is what I noticed that I had not noticed previously.
Starting at the shove, Drejka (D from here on) goes down. Watch McGlockton (M from here on).
M does actually begin to move towards D and is pulling his pants up and his body language indicates to me that he intended to continue the attack. i.e Hiking up pants and is clearly what we called in the south “bowed up”
Then M see’s D reaching for something. he stops and takes 2 steps back, rather casual steps, and then pauses. He never actually touches the car until after he is shot, so he has not run into any barriers to his retreat.
M then begins to turn and D shoots.
Since the turn away and the shot happen at almost the same time, it is possible D didn’t realize that he was turning until after the shot, but M paused on his own, he didn’t hit a barrier (car) he just paused. He also made no other sign of ending the conflict. Most people would at least raise their hands when confronted with a firearm.
So my point is that I think you are mistaken in the assertion that M had retreated as far as he could have. If he had bumped into the car I sure, but he didn’t. M took two unhurried steps back and paused instead of continuing his retreat. He didn’t display the hurried steps of someone trying to retreat or the GTFO that I would expect to see. He also displays no other body language to indicate that he wants to end the confrontation.
I wish we had audio of what was being said between the two that might completely change things.
Once again I am not trying to justify D shooting M. I am just stating the reasons that I don’t see an “obvious attempt to retreat”.
I admire your tenacity in trying to defend D’s actions.
M could have taken no more than a half step backward, before encountering the car. It is just as possible that he knew the location of the car and knew that he could not retreat farther, directly to the rear. But, that not withstanding, M had already retreated. He was no longer standing over D in anything resembling a threatening posture. And, D was pointing a loaded handgun directly at him.
Now, a retreat is a retreat. M had broken immediate contact with D and moved away. At no time prior to D shooting him, did M ever make any overt move toward D and certainly not a threatening move. And, that was D’s main problem. The initial attack was over [M retreats]. There is no overt indication that M intends to initiate another assault. And, the only movement which M makes is to turn to his right, away from D. Sorry, but this was a bad self defense shooting and D owns it.
@Mac45
I am not defending anything, in fact I have said repeatedly that I don’t believe Drejka should have shot.
What I did was point out certain aspects of the video that I noticed because your arguments caused me to look at it again after not viewing it for a few weeks.
But hey, no worries. Peace.
Clearly, a 9mm is a better self defence choice over the 40 caliber.
So which is the greater threat to the defender, a rifle, shotgun or “personal weapons” (hands, feet, elbows, etc)?
Based on the FBI Uniform Crime Statistics on Homicides by Type of Weapon there is little doubt that more people are killed each year by personal weapons than by all reported homicides by rifles, or shotguns. How about both, which is consistently factual for the most recent report on years 2012 through 2016 where in each year personal weapons resulted in more homicides than rifles and shotguns combined.
I’m afraid the Bravo Sierra is attributed to you.
This quite possibly the stupidest post ever. If it were true that hands and feet were deadlier than firearms, then no one would bother to carry a firearm, would they. Come back to reality.
Now, I will give you the benefit of the doubt that you are just mistaken concerning the number of homicides committed by firearms as opposed to those committed by personal weapons. But, the actual numbers for the period 2012 to 2016 are 46445 for all forearms and 3390 for personal weapons [https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/tables/expanded-homicide-data-table-4.xls]. Not only completely opposite what you claimed, but the deaths from firearms are more than 10x the number of those from personal weapons.
Better luck next time.
You know darn well he didn’t say “firearms”. It’s stupid to put words in others mouths.
It’s like characterizing a blind sided attack knocking someone to the hard pavement a “shove”. Something you have done repeatedly.
I was being kind. But, since you pointed it out, what he did s to cherry pick his statistics to support an invalid conclusion. What he did not do is make any attempt to place his statistics into context. If he had, he would have pointed out that rifles and shotguns are only used in ~1% of assaults. Whereas, hands and feet are used in about 60 times as many.
So, rifles and shotguns are 60 times as deadly as hands and feet. Get it?
That is a valid argument, if true. But how do you know? What is your source that assaults with bare hands and feet are 60 times more common than assaults with rifles and shotguns? It stands to reason that they must be more common, but where did your “60 times” come from?
Now you’re deliberately lying. You know damn well that the subject is rifles and shotguns, not “firearms”. Your own source says the figure for rifles is 1473, and for shotguns is 1416. That adds up to 2889, which is less than 3390.
Now what you should have pointed out is that there were also 11,328 homicides by “firearms, type not stated”, and since rifles made up 4.2% of the firearms whose type was stated, and shotguns 4%, it stands to reason that approximately 475 of the unstated weapons were rifles and 456 were shotguns, bringing the totals to 1948 rifles and 1872 shotguns, for a total of 3820, which is (barely) more than the total for personal weapons. So while you are less likely to be killed by a rifle than by a personal weapon, and also less likely to be killed by a shotgun than by a personal weapon, you are slightly more likely to be killed by a rifle or a shotgun than by a personal weapon.
The real flaw in the argument though is that these stats are only relevant to people in general, not to people who are actually being threatened with a rifle or a shotgun. What percentage of people who are so threatened are killed, compared to the percentage of people threatened with personal weapons? The FBI doesn’t say and can’t possibly know, but common sense tells us that the former number must be higher.
What Edwrd did is known as cherry picking. He cherry picked the statistics for rifles and shotguns, which comprise the smallest percentage of weapons used in criminal attacks, while completely ignoring the rest of the firears used in attacks. he did this simply to make it look like hands and feet were deadlier than firearms in general and rifles and shotguns in particular. Good try. But, it won’t fly.
He did no such thing. You are completely off your head here. There was no cherry picking, outside your imagination. He neither wrote nor implied anything about firearms in general; you are the one who dishonestly changed the subject to those.
His point was very clear, though in my opinion probably mistaken: an unarmed attack is more dangerous than an attack with either a rifle or a shotgun; therefore anything that would be justified as self defense against an attacker armed with a rifle or a shotgun must be even more justified against an unarmed attacker. I think he’s mistakenly misusing the FBI stats, but your mischaracterization of his comment was not a mistake.
Hand and feet are NOt so classified.
Sorry, you’re dead wrong. I’ve sat through court cases while marooned there on other business, and people are definitely charged with feet as weapons. More specifically, a “shod foot” as a “deadly weapon,” which would include McGlockton unless he was traipsing around barefoot.
I am not wrong. No jurisdiction in the country classifies hands and feet as deadly weapons. Or even as dangerous weapons, for that matter. They can be used to deliver deadly force, however. In the case of a deadly weapon, shooting a person in the foot constitutes a use of deadly force. However, stomping on a man’s foot, even with a shod foot, does not constitute deadly force, unless it actually kills the man.
So you’re claiming Tom Swift did not witness what he claims to have? Do you think he imagined it, or that he’s making it up?
Yea you pretty much missed the entire point of the article. The point was that the “use of force” expert gave incorrect information, which was not challenged by either the defence attorney or the defenses use of force expert. All of which combined to cause the Jury to make a verdict with incorrect information.
Even Andrew says plainly that he doesn’t know that it would have changed the outcome but he is correct. If a jury makes a verdict with the wrong information then it is an unjust verdict. He did not argue that the verdict was in error, but that an error was committed.
I would think that such an error might even be enough to justify an appeal.
The so-called “21 foot rule,” which exists NOWHERE in common law or statutory law, is something mentioned in concealed carry classes. That’s it. Nothing more. It refers to someone attacking with a knife, and includes time needed to draw.
Neither of those conditions was present in this case. The author had a great time blathering, but his self-important hypotheticals are laughably irrelevant here. I’m quickly regretting having ordered his book the other day.
So your assertion is that all evidence (scientific or otherwise) has to be codified into law?
No one ever said the 21 foot rule was law. It is an accepted concept in use of force cases, based on it being evidence, since the study has been duplicated multiple times with the same result.
Indeed. I would have expected pretty much all courts to adopt the Daubert or Frye standards, which are common law and not statutory law.
So your assertion is that all evidence (scientific or otherwise) has to be codified into law?
No one ever said the 21 foot rule was law. It is an accepted concept in use of force cases, based on it being evidence, since the study has been duplicated multiple times with the same result.
IF you did actually order Andrews book, I should suggest that you stop commenting until after you read it.
Gads. EVERYONE is missing the point. Because Drejka waited 2 seconds after presenting his pistol, the first attack was, in effect, completely over. McGlocton stopped his advance for those two seconds. The weapon was ALREADY out and pointed at M.
WHAT THIS MEANS is that the ‘safe’ distance, (or Tueller distance) is REDUCED from 21 feet to 4.6 to 7 feet, depending if the shooter had his finger on the frame of the weapon or on the trigger. Tueller demonstrated the attacker can move at 14 feet per second in a full run, hence the ’21 feet’ in 1.5 seconds. The human brain can react to a situation in as little as 13 milliseconds from when it is first sensed, but for the sake of this argument I’ll give that a lot of pad and call minimum reaction time to decide to shoot at 330 milliseconds (1/3 sec). If the shooter’s finger is on the frame, add another 170 msec to get finger off the frame and onto the trigger, or 1/2 sec (500 msec) total reaction time. At an attacking speed of 14 ft/sec that means the attacker will reach the defender if he is closer than 4.6 to 7 feet. THE 21 FEET DOES NOT APPLY IN THIS CASE.
Andrew is upset the Tueller discussion was mangled by prosecution and defense. OK, I’ll accept that, but that still doesn’t address the problem that the first attack was over and Drejka shot (IIRC) when he saw M’s feet move. M’s feet WERE NOT THE DEADLY WEAPONS. Drejka’s interview statement and the video put him out of the 5 to 7 foot range when Drejka perceived the second ‘attack’ to have begun that resulted in the shooting.
So based on that, I’m not unhappy with the outcome of the trial. According to Andrew, they got there the wrong way, but I’d hate to waste taxpayer money to do it all over again especially if they get the same result. But if Andrew wants to defend D and do it all over again, that’s up to Andrew.
“Gads. EVERYONE is missing the point. Because Drejka waited 2 seconds after presenting his pistol, the first attack was, in effect, completely over. McGlocton stopped his advance for those two seconds. The weapon was ALREADY out and pointed at M.”
I think you are asking a lot and have an unreasonable expectation. The tactical/situational assessment that you make is easy to do when you are watching a video in the comfort of your home or office. However, take a moment to think about it, you are talking a space of time that basically comes down to 2 to 3 heartbeats. Especially when other than a couple of unhurried steps back McGlockton made no other sign of wanting to end the confrontation, i.e. Raised hands.
I am not saying Drejka was justified, I am not at all sure he was.
How they are “classified” is irrelevant. The only relevant point here is whether they can in fact deal deadly damage, and they can.
This is addressed in the article: “Having a gun already out of the holster doesn’t eliminate the lesson of the Tueller Drill, it merely adjusts the speed of defense from the 1.5 seconds of the holstered pistol to some lesser time span (perhaps 1.0 seconds). The fact that the gun is in the hand doesn’t reduce reaction time to zero, it merely reduces reaction time to something less than when the gun starts from the holster.”
That is utter BS. The rule is entirely about how fast a person can move. Please explain how a person holding a weapon can move faster than a person not holding a weapon. How does not having a weapon slow you down?
The classification of a “weapon” is indeed important, in self defense cases. In case law, instruments which have been classified as deadly or dangerous weapons allow a defender to advance to the use of deadly force, in self defense, immediately. Instruments not so classified, usually do not allow a person to immediately use deadly force in self defense.
Nos, at a distance of 7″-8″, a prepared individual, aiming a handgun at another, should be able to fire at least one round before the other person reaches him; if the other person begins at a standing start. Reaction time and finger travel time should remain fairly constant, so the variable becomes the acceleration of the attacker.
Finally, some here want to use the Tueller Drill information as a defense. However, in this case how long it would take an unarmed man to cover the distance involved is totally irrelevant to whether Drejka could lawfully use deadly force to stop any supposed attack. Without M being obviously armed, D could not legally shoot him, PERIOD. If M was armed with any instrument, which could be classified as a deadly or dangerous weapon, then Drejka’s legal justification to use deadly force would be increased significantly. However, we would still need to see reasonable evidence that M was preparing to attack D, immediately.
This is simply not the law, anywhere.
This doesn’t make any sense at all. So what you are saying is if a large man is physically beating a small woman with his fists she cannot shoot him? Absurd. Because he is using his fists and not a separate weapon? I’m not aware of any need for there to be a separate weapon outside of hands and fists to qualify for self defense. I don’t recall exactly the FBI statistics, but hands and feet are the cause of a great number of annual deaths. I believe more than rifles and possibly less than handguns. But your point is silly that a separate weapon is necessary to qualify to engage in self defense.
Hands and feet, especially of someone larger, heavier, and under the influence of illegal drugs, are potentially lethal weapons, especially to someone on the ground nearby who was just violently shoved there by the thug in question.
Also, McGlockton had not clearly retreated by the time he was shot. After he was shot he clearly retreated. Note the difference.
Just because an instrument CAN deliver deadly force, does not make that instrument a de facto, or de jure, deadly weapon. In the Zimmerman case, Zimmerman ws not legal justified in using deadly force against Martin immediately upon being assaulted by Martin. The assault had to continue for such a time and in such a manner as to lead a reasonable man to believe that unless deadly force was used to stop the attack, it would result in death or great bodily harm to Zimmerman. is a retreat. Now, if M had reversed direction and moved toward D, in a threatening manner, this would reasonably signal the possibility of an imminent attack. But, that did not happen.
Also, a retreat is a retreat, moving away from another
So you’re saying if someone beats you, you cannot defend yourself in the most effective way possible, until he beats you enough that you are almost dead? This is just silly. The law says if you perceive that the attack may be deadly you are justified. It doesn’t say you must allow yourself to be beaten for two minutes then you can respond. IF you PERCEIVE it MAY be deadly, you are justified to use deadly force. I just took a CCW class a month ago. Reality is not part of the calculation, Perception is.
One caveat to what you wrote, is that perception must be reasonable that is a major detail.
Another illuminating master class from the inimitable Professor Branca. Thank you for penning this lengthy and informative article – – I learn something new every time I read one of your posts.
Way too many words. Drejka shot a man who was retreating. No jeopardy, no self defense. Guilty as charged. End of story.
You’re wrong. Deciding convictions of this magnitude that affect many lives on both sides is definitely justification for a deeper analysis than your oversimplification from the bowels of the drive-by internet.
Your simplistic explanation is as bad as saying Trayvon was legally standing his ground against Zimmerman because Zimmerman was following Trayvon. (yes, simple idiots actually said that on the webz).
The so-called “21 foot rule” isn’t legally recognized, and even if it was, it wouldn’t apply here because Drejka’s victim was unarmed and not attacking, but was retreating.
The Zimmerman case had nothing to do with “stand your ground.” It was a classic AOJ case and nothing more. Zimmerman had a reasonable fear of imminent grave injury and/or death when Martin tackled him and pounded his head into the ground.
If I were on those juries, I’d have voted with the majority in both of them, and it wouldn’t have taken me very long to make my decision. The write-up above is a lot of hypothetical blather that has no relevance to the facts of the Drejka case.
“The so-called “21 foot rule” isn’t legally recognized”
What does “legally recognized” mean? Is it codified into law? No. Is it a common piece of evidence used in courts hundreds of times since the articles writing? Yes. Is it taught/referenced commonly in use of force classes? Yes.
So I am not sure what you mean.
It exists NOWHERE in common law or statutory law. It’s something mentioned in concealed carry classes. That’s it. Nothing more. Further, it refers to a knife attack and includes drawing time. Neither of those conditions was part of this case. The author’s post is a collection of laughable, self-important blather that is wholly irrelevant here.
@RandomCrank
Well I see your name is appropriate and now I see that you really didn’t read the article and just don’t know what you are talking about.
If you had you would have read the part where the article written by Tueller specifically stated that it applied to more than knife attacks.
Also, your assertion that drawing time is a critical factor, I watched the video again and Drejka did have to draw his weapon, in fact it wasn’t even in a holster it was in a pocket, so…yea.
“The author’s post is a collection of laughable, self-important blather that is wholly irrelevant here.”
Since the Author is one of, if not the leading expert on Self Defense Law in the United States vs a rando on the internet who can’t even get the basic elements of self defense correct I think I know who I will trust.
Also, it has been mentioned in every defensive pistol class and training I have ever taken and in fact was never mentioned in my CCW class.
The so-called “21 foot rule” was covered in the class I had to take for two of my three concealed permits. It was discussed in the context of a knife attack, and included drawing time.
As soon as Drejka drew, his ultimate victim backed away, and then started turning away. Anyone who claims that they can’t see it on the video is lying. Even if I grant, for purposes of argument here, that this rule of thumb (which has no legal basis) applies to other weapons such as “shod feet,” it doesn’t matter because the victim was retreating when he was shot.
No jeopardy, no self-defense. Guilty as charged. Case closed, end of story.
@RandomCrank
Like I said you should probably read Andrews book and get some actual knowledge on self defense law.
Also, whether you are willing to admit your mistakes had nothing to do with fact and reality. If you can’t move past that the Tueller drill was about more than knife attacks even when faced with the article that plainly says it. Frankly I don’t have much hope for you.
So, no actual knowledge, your wrong, guilty as charged.
(See I can type random sill crap to. :-); Peace)
Unarmed? Did he have hands and feet? Then he can deliver deadly force. I’m not arguing my opinion. This is the law. Did the victim PERCEIVE the POSSIBILITY of deadly force? Then he can defend himself as aggressively as he can.
Look at the video again. McGlockton was STOPPING his retreat when he was shot. He initially flinched back at the sight of the gun then took a few steps back, then he slowed his movement away to a near stop and was counter-rotating his upper body back to the left, suggesting re-engagement, when Drejka fired.
At the very least McGlockton had NEARLY stopped retreating, just a couple of seconds after Drejka had already stopped a second attack by reaching for his gun.
The real issue seems to be innocence. Since Drejka created the non-violent confrontation does he bear any special responsibility when the other side escalates to criminal violence?
He certainly would have a moral responsibility not to exceed proportionality or to respond with lethal force when there is not real imminence, but are these legal requirements actually altered or stiffened by Drejka’s role in creating the confrontation?
I would like to see Andrew address the innocence question in this case since it represents an extreme of creating confrontation without committing a crime. Does that bear on subsequent responsibilities?
Surely we all can’t all have a responsibility to back down from Antifa, for instance, just because we happen to be armed. We can’t lose our rights because there are people out there trying to suppress them. We are allowed to non-violently stand up for what is right, and to defend ourselves if we are attacked for standing up.
The standard instructor advice to avoid confrontation when armed can’t ALWAYS be right. There is a good case to be made that the proper response to Antifa is to 1) confront their attacks on free speech, as when they try to forcibly insist that Trump and his supporters can’t have a rally in “their” city, and 2) to be armed at the time.
We can’t accept a “Drejka standard” where people who willfully engage in non-violent confrontation cannot be armed or use lethal force when they are reacted to with serious violence.
Andrew, the complexity and thoroughness of your post is exactly why the media just throws out “Stand your Ground” every time a gun is used in self defense. It’s way too complicated to explain in terms understandable by the average uninformed citizen as every single fact may change the outcome of the case.
“Stand Your Ground” is far more limited than both its supporters and opponents think. All it says is that there’s no duty to retreat from a place where you’re otherwise legally entitled to be. For a shooting to be self-defense, your assailant must have the ability and the opportunity to inflict grave injury or death on you or people nearby, and you or others nearby must have had a reasonable fear that it would imminently happen.
If AOJ (all three) aren’t present, it’s not self defense. And even if the elements were present, if you instigated the situation or joined an altercation when you didn’t have to, many juries will rule against you.
The Drejka case was never a “stand your ground” case, regardless of what he and/or his lawyers claimed.
“your assailant must have the ability and the opportunity to inflict grave injury or death on you or people nearby, and you or others nearby must have had a reasonable fear that it would imminently happen.”
You should really read Andrews book. There is nothing that says that the assailant must have the ability to do harm. Otherwise, for those unfortunate enough to have mistaken a toy gun or other object for a weapon would be in jail. Since someone with a toy gun does not have the ability to do harm. In fact the attacker is not required to even have a weapon.
There was a case here where a guy tried to carjack a man by pretending to have a gun. The driver put 2 .357 rounds into him from his own firearm. Completely justified shoot. All that is required is the reasonable fear, at least for that 1 of the 5 things needed to prove self defense.
Innocence
Imminance
Reasonableness
Proportionality
Avoidance (Not a factor in this case)
(Andrew, I didn’t even have to get out my book to list those, lol)
I won’t even get into the defense of others thing, since that is a whole bag of worms all on its own.
You should really brush up on understanding of self defense law.
“The Drejka case was never a “stand your ground” case, regardless of what he and/or his lawyers claimed.”
Yea and no one here ever claimed it was, in fact I myself and several others explained to other rando’s like yourself specifically that it wasn’t a SYG case and that the term was being misused (purposely in my opinion) by anti-self defense nuts when they should be using the term Lawful Self Defense.
Crank, your flawed reasoning is much like the BS which was tossed around regarding Trayvon Martin, Michael Brown and a bunch of other cases. Neighborhood watch is not an excuse to assault someone. chastising someone for parking in a handicapped space is not a reason to assault someone.
I have a number of times been for short times, from weeks to over a year, in a wheelchair or on crutches. That was enough to make me appreciate just how difficult it makes life.
Some elements of society feel that they have a right to break laws small and large. I am fed up with their crap.
Someone briefly changing their stance by no means definitively shows that an assault has ended.
If you instigated a physical altercation, yes. But any jury that would rule against you merely because you initiated a verbal altercation is violating its oath. You have every right to initiate all the verbal altercations you like, and nobody has the right to initiate the use of force against you; if they do you have the right to defend yourself.
You certainly have the 1st amendment right, but when the 6th amendment inserts its 12 complicated and imprecise snouts into the jury box, methinks you’d wish you’d STFUd.
The jurors swear to obey the law, and it’s the judge’s duty to instruct them that someone exercising their freedom of speech is not responsible for violence initiated by someone else.
This is wonderful. Now when Cops shoot someone 21 feet away they can be held responsible.
1.5 seconds at 21 feet is 8.75 MPH. Most people can’t run that fast.
I don’t believe we should base everything imaging urban ninjas can throw knives into your eyes or carotids at 20 feet.
The whole understanding is flawed and the rest is the attempt at splitting hairs. Most of the above I would discard if I were on the Jury. The key is the defendant was already attacked, and the attacker was hovering, perhaps menacingly, instead of retreating to a safe distance and calling the police.
It is completely irrelevant in this case. The victim didn’t have a knife. He was retreating, not advancing. And the so-called “21 foot rule,” which has no basis in common law or statutory law, includes drawing time.
The entire premise of this article is laughably invalid.
The only thing laughably invalid is your claim to understand Self Defense Law.
I am starting to wonder if TDS ras has resurfaced.
That was TDS Rags.
Certainly the logic is familiar, rather the lack of. 🙂
Huh? Did you read what he wrote? Besides I said his understanding was bad, I did not insult him personally.
G’74, I’m quite sure he was talking about the crank.
@Barry
Yea now that I re-read it I can see that. May apologies to @JusticeDelivered.
The funny part is I kind of miss Rags, did he get banned or something?
Toying with Rags was fun, he was mad and took his limited number of marbles to a different sandbox.
Gremlin, I don’t know. I’ll guess he made a fool of himself to the point he left on his own. I have no knowledge of this however.
You’re wrong about pretty much everything here. 1 – it has nothing to do with having a knife. 2 – it is a CONCEPT of how close a combatant can reach his victim. 3 – you don’t have to knock your victim out. The concept is that the bad guy can get close enough to you that you’re weapon is not actionable. I would recommend you take some handgun training and they will go over all of this in a handgun 1 or 2 class. It is pretty basic stuff. They talk about how just because you have a gun available does not mean you can defeat an aggressor. Especially within about 21 feet. For all the reasonsalready given.
“…8.75 MPH. Most people can’t run that fast.”
In addition to everything else you say wrong, you’re wrong about the speed a human can run. The average person can walk 3mph. I routinely walk 4-5 mph. It’s quite easy for most normal people to run well over 8.75mph.
Do you live in chains?
Not if they had reason to believe the person had a distance weapon.
Tueller proved that that is not true.
And we don’t. Nobody does. You’re making up ridiculous straw men, and that is not honest.
I find myself wondering how to re-enstate the 21 foot rule in future cases after this result?
Perhaps an in court demonstration as part of a recreation of the crime sequence? It would not surprise me if even an a dumpy lawyer could kick the head off of a manqine in less time than the jury could process it from the distance the shooting was at. At that stage of the jury members couldn’t react to it, any use of force expert testifying otherwise would be rather discredited.
One would need to discuss this with the judge and Bailif in advance though. Surprising them would be unwise.
There is no “21 foot rule” to “reinstate” in the law.
Just because it was misused in this case doesn’t decrease its validity when properly understood.
Honestly I don’t see why this wouldn’t be good enough reason for an appeal.
This case did not harm the use of the 21 foot rue in defense cases. Here’s how.
The Tueller Drill is a means to show that the amount of time necessary for a person to close a 21 foot distance and deliver harm to another. And,that has not been invalidated. The question of what type of damage will be involved is the main justifying factor in the use of deadly force. Now, the Tueller Drill is usually a scenario involving the use of a deadly contact weapon by an assailant. Not a distance weapon, as contact would not be necessary to inflict harm with a distance weapon. So, this case does nothing to diminish the effectiveness of the 21 foot rule self defense cases.
Now, IMHO, it is possible to justify the use of deadly force,against an unarmed opponent with no force differential, if the defender has introduced a deadly weapon into the mix, especially a firearm. Should a determined attacked advance in manner consistent with an attack, in the face of a leveled firearm, it can be reasonably assumed that that the attacker intends to inflict death or great bodily harm upon the defender, if by no other means than disarming the defender and using his own deadly weapon against him. In that scenario, the Tueller Drill can be effectively used to justify shooting the attacker before the attacker makes contact. However, in this case we lack any evidence that M is intent upon attacking D, let alone a dedicated attack, when D shot him.
Trial court rulings do not establish case law; only appellate court rulings do. The problem here is defense counsel malpractice and perjury by the state’s use-of-force expert. Even Drejka, who knew about the Tueller drill at the time of the shooting, should have caught the error and brought it to the attention of his attorneys.
Question: Do defense attorneys sometimes err intentionally to give their clients grounds for appeal on the basis of incompetent legal representation?
I’m still puzzled by this part—
Whether Drejka’s shooting of McGlockton was lawful self-defense . . . always appeared to me rather ambiguous . . . reasonable people could arrive at either guilty or not guilty on this case.
Ambiguous implies that “beyond a reasonable doubt” is not satisfied. So how is a conviction justified?
This was always my problem with the case. I know many claim that McGlockton was “obviously retreating”, however I never did see that. I don’t consider a couple of steps back retreating absent other actions making it clear that you are ending the engagement.
It certainly wouldn’t have been obvious to Drejka who didn’t have the option of frame by frame to make a judgment.
Should Drejak have shot? No, I do not believe he should have. However, that doesn’t mean that the shooting wasn’t justified.
I would have voted to acquit based on the fact that I can’t say that McGlockton was retreatings and that leaves me with a reasonable doubt.
grrr, hit submit to quickly.
Because of that I also can’t say that it wasn’t reasonable for Drejka to honestly believe there was an Imminent threat.
It’s ambiguous whether reasonable doubt exists. Some juries would see reasonable doubt here and some would not.
The claim is that McGlockton was starting to retreat, so the shoot was bad. McGlockton did retreat, but it’s not entirely clear that was his intent before being hit. He did stop his retreat after all, and he was clearly shot while stopped. Obviously retreating was his intent after being hit, and Drejka didn’t fire at him when he did. Given how close McGlockton was, halting his retreat makes him a continuing threat. He was hardly back against the car, he was about a step in front of the car.
McGlockton made no obvious move towards Drejka after stopping, but given his previous attack Drejka probably assumed stopping was an immediate prelude to another attack so he fired. Many would have made the same assumption, that a failure to continuously retreat indicates an imminent attack.
It might not apply here, but given how close McGlockton was, and in the context of a Tueller drill, demanding Drejka be dead certain, before firing, that any movement from McGlockton is a retreat and not an attack will generally see Drejka dead if it is an attack. That’s a terrible legal standard for prosecutors to promulgate.
As for McGlockton only being armed with fists, Drejka being on the ground puts him at a severe disadvantage. I also don’t recall the requirement for deadly force self defense being that the attacker has a weapon.
I assume that had McGlockton been armed with a hammer the prosecution still would have claimed the Tueller drill only applies to edged weapons (hammers evidently being harmless), or changed their claim and say the Tueller drill only applies to unarmed attacks.
M retreated. whether YOU, or Drejka, consider that to be sufficient to establish that the initial attack had been terminated, is of secondary importance. That M had not retreated far enough to convince you that he did not intend to immediately attack D, is of secondary importance. What is important is that the jury reasonably decided that M HAD retreated. That he had terminated the initial attack. And that there was no evidence that he was about to attack D again. In order for D to justifiably use deadly force against M, M would have to make a threatening move in D’s direction, indicating that he was attacking D, and have the means to likely cause death or great bodily harm to D, if D did not use deadly force to stop the attack. Unfortunately for D, none of those factors existed.
Mac45…
Drejka doesn’t seem to have much situational awareness…
(and that’s a BAD trait when you’re giving some random woman a parking lesson)
He had plenty of time to see McGlockton coming…if he had been paying attention.
Was McGlockton really retreating ? I don’t know…in my younger fighting days, I’ve seen that retreat-then attack move a couple of times…
Depends how much of badass McGlockton was…
Was he intimidated by the sight of a sitting, weaker white guy holding a gun…?
I always wonder in these kind of trials if the jury or the lawyers or the judge have ever been a street fight ?
(I know…doesn’t make a diff…law is the law…ect)
See, this is a really intelligent post.
Drejka did not have any appreciable situational awareness. Which is ehy he did not see M, until the instant before M shoved him. But, this is not really germane to the issue.
Your next point is. Did M retreat? Yes. Moving away from D constituted a retreat. It signaled the end of the previous attack. Now the question becomes, was another attack by M imminent? We will never know for sure, because M is dead. So, we have to rely upon what evidence of the interaction we can to make a determination as to that. In this case, Drejka would have to have a reasonable belief that another attack was imminent. To determine what is “reasonable” we have to place ourselves in the position of a “reasonable” man who would find himself in Drejka’s position. This is a rather subjective standard, so we look to available evidence to clarify what would be reasonable.
So, we have an attacker who violently shoved Drejka, causing him to fall to the ground. While D ws supine, and not yet drawing his weapon, M made no further attempt to continue the physical attack. Upon D drawing his firearm, M immediately backed up to the limit possible, because of the car behind him, then stops. Whether he was stunned into inactivity, or was thinking of his possible future actions, is unknown, but it seem likely that it was the latter. M finally decide to turn to his right. Was this a movement to initiate an imminent attack? Possibly, but if so, his tactics were not clear. Was it an attempt to continue leaving the field of battle? Very likely. If M had made a movement directly toward D, that could reasonably be assumed to indicate that another attack was commencing, especially if M moved in an aggressive or threatening manner. But, that is not what happened. What happened was that M turned, again away from F, and D reacted by shooting him. The question then becomes, was the shooting lawful? And the answer was, the available evidence does not support that. So, Drejka gets convicted of manslaughter.
Now, I’m going to let everyone in on a little secret here. If a LEO had done this, it would have been considered a bad shooting. It might very well have resulted in the LEO being charged and convicted.
“If a LEO had done this, it would have been considered a bad shooting. It might very well have resulted in the LEO being charged and convicted.”
That’s just flat out laughable.
I believe the 21-foot rule is misunderstood. As the title of Tueller’s article asks, “How Close is Too Close.” The answer is 21 feet. If your opponent is at or inside this distance, he is already too close! Twenty-one feet is the minimum distance at which he should be engaged. Merely having sufficient time to draw and engage does not guarantee a stop or a successful defense of oneself. Your attacker must be stopped before he’s close enough to do damage. Twenty-one feet is the barest minimum distance for the potential of a successful stop – it is not the maximum range at which an attacker is dangerous and at which he can be/should be dropped.
The Tueller Drill sets a minimum based on the reaction, draw, presentation, and firing (and hitting) a charging attacker. It presumes much about the speed of the attacker (noted above is that in the drill, the attacker begins from a standing start – he’ll be faster if he’s charging from a greater distance), presumes an unfettered draw (what if the defender is wearing under a concealment garment?), and perfect execution of the presentation and shooting. If someone begins charging at you from fifty feet away and you wait until he’s twenty-one feet away (in order to “comply” with the 21-foot rule), you are playing a very dangerous game. You’re running the risk that your attacker will make contact and possibly kill you before any shots you may have put into him take effect. Self-defense is not a game.
In this video you will see an experienced gunfighter/firearms instructor facing off against an expert with edged weapons (which is largely irrelevant, what’s relevant is how fast he is able to close the distance and how much trouble he gives the gunfighter, until the gunfighter comes up with a terrific solution to a charging attacker):
https://www.youtube.com/watch?v=2fjMpn7JCJ0
Exactly, because if they are already in that sphere then it may be to late.
Both the prosecution and the defense are actually wrong about the Tueller Drill.
To begin with, the Tueller rule is only an attempt to define reasonableness. It sets a maximum distance a potential assailant can be for a trained police officer to have the right to shoot.
It is commonly practiced under a scenario where the potential assailant has a knife or other edged weapon probably because a police officer may be able to defend himself against someone armed just with fists or his body,
A civilian should have more leeway.
It is not written into law, and has nothing to do with anything, except that if whatever happens qualifies, it is much more easy to argue self-defense.
But it is not a requirement.
I know it is just semantics and not what you meant but 21 foot drill doesn’t give the trained police officer the “right” to shoot. It just helps justify the shoot.
Andrew,
You make a convincing case for ineffective assistance of counsel. Your post should be included in the appeal brief.
The level of support for the shooter here genuinely surprises me. I’m part of a bunch of very pro-gun, pro-armed self-defense forums online, and Legal Insurrection is the only place where Drejka has gotten the support of anything more than a small minority posters.
The conversation notwithstanding, I’ve observed that concealed carriers like myself are generally a tough crowd in these cases, and will typically apply a very high level of skepticism toward this or that shooter who claims self-defense under disputed circumstances.
This matches my personal attitude. I go nowhere without my gun. I put it on when I get dressed, and take it off when I go to bed. I’m the poster child for armed self-defense. Reading the original post up top and many of the comments makes me think I’ve landed in an alternate universe.
This particular case strikes me as so obvious and simple for the reasons I’ve already stated, yet here are an author and a bunch of his followers putting that verdict into apocalyptic terms. Oh well. No one has to think alike, but this is one of the weirder discussions I’ve seen in an otherwise intelligent place.
Oh, I see what some of the problem may be. I think you are mistaking a group of people who like to parse and discuss details with support for Drejka. While there are some he who obviously do support him. Most of us enjoy discussing the details. I think if you look back you will see that people are discussing nuisance, not actually trying to justify.
We also like to play devil’s advocate and frankly like to argue with each other.
Also remember this is not a self defense forum, it is a legal forum and we like to beat the details to death.
I mean look at Andrew’s article he says plainly that he thought Drejka’s claim of Self Defense was “ambiguous” at best. The article isn’t about saying Drejka was justified it was about an obvious error in information given to a jury and even he says he doesn’t believe it would be enough to grant an appeal.
Also, take the time to go to Andrew’s website itself. He is a Sig Sauer instructor and has dedicated his legal practice to Self Defense Law.
I guess my point is don’t take lively debate as something other than that. I think if you look, especially back at previous articles for this case, that you will see most people are really on the fence with this one, including myself.
So you think if you are “pro gun” and “pro elf defense” you are automatically correct. Your virtue signaling doesn’t change a damn thing about this case.
The fact is you do not, I do not, no one knows what was in McGlockton’s mind or what he might have done next.
And no one, not you nor I, can know how it looked to the man laying on the ground as a result of a violent attack.
I choose to err on the side of innocence and the right of self defense. Those that find guilt so easily are too squeamish to admit the truth, McGlockton was a bad guy, and knocked a man violently to the ground. Three seconds later the man on the ground defended himself. That’s it. There is nothing more. All the analysis is nothing more than attempts at mind reading.
How long before we find out the lying prosecutor Scott Rossenwasser and his “expert” Roy Bedard are Soros stooges?
The crook who illegally prosecuted the Lacrosse kids 10 years ago thought he’d get away with his crimes too.
The upside of all this is that there is one less Trayvon or “Gentle Giant” roaming the streets.
The dude should have awarded a medal for putting down that feral monkey.
Please take your racism and bigotry somewhere else. Though I doubt after on of the mods reads your comment you will be here long anyway.
Ah look! A delicate snowflake. The dead guy was an animal. Period.
Using the Tueller Drill rule in thus case was blatant dishonesty. The rule applies to potential imminent threats.
The dead guy was more than just a threat. He had already attacked the shooter. He was way past the point of being a threat.
Drejka waa fighting for his life.
It’s a shame the defense didn’t challenge the slimey “expert”.
“Drejka waa fighting for his life.” Uh, no he wasn’t.
M shoves D, but, even though he has a clear window in which to continue the attack, including the much ballyhooded lethal kick to the head, head fails to make any attempt to do so. When D begins to draw his pistol, M immediately retreats several steps. While D is pointing his pistol at M, M makes no attempt to attack him. M turn to his right and D shoots him.
So, the statement that D ws fighting for his life, is assume hyperbole. While he may have been fighting, there is no evidence that his life was ever in any danger.
“Shoves”
You sound like a parrot, parrot.
I’m sorry that this an inconvenient truth, but hat M did to D is a SHOVE. It is not a punch, a kick, he did not body slam him or physically drive him to the ground or even throw him to the ground. M SHOVED D and D fell.
The truth shall set you free.
You have to pretend it is just a little schoolyard shove or your whole case is destroyed.
It was a violent attack and he knocked the man to the ground. There is no mistake about this.
“You have to pretend it is just a little schoolyard shove or your whole case is destroyed.”
Not l all. YOU fail to grasp the law in question. First of all, this was a shove, period. D was not thrown to the ground.a myriad of reasons. the first is tht when However, even if he was violently THROWN to the ground, he would still NOT be legally justified in using deadly force against M, for several reasons. The first is that attack had already taken place. No action by D could prevent it. Second, when M backed away from D, this constituted a retreat, which signaled the end of the initial attack. Third, M made no movement in D’s direction, indicating that another attack was imminent, especially one which could be considered threatening. Fourth, as M was unarmed, his actions would have to clearly establish that unless D used deadly fore to stop an attack, he would likely suffer death or great bodily harm. And that did not exist.
D did not use deadly force as authorized under state statute. Except for the possibility that a jury might find Drejka a sympathetic witness and acquit him, this was pretty much a slam dunk prosecution.
I will give you that it was a shove/push. Now does the law actually differentiate between a shove and a punch? It doesn’t anywhere I have ever seen. Battery/Assault is physical contact the type of physical contact can be as simple as grabbing someone’s arm to turn them around.
The fact of the matter is that McGlockton made physical contact with Drejka and due to that contact, Drejka fell to the ground. That physical contact was a crime and McGlockton was the aggressor.
Now does that mean Drejka automatically had the right to shoot? Well no of course not.
” D was not thrown to the ground.a myriad of reasons. the first is tht when However, even if he was violently THROWN to the ground, he would still NOT be legally justified in using deadly force against M, for several reasons. ”
You cannot possibly believe anything you wrote.
He wasn’t thrown to the ground? You blind?
He is not entitled to defend himself? You ignorant?
Here’s what the defense counsel should have asked the so-called “expert”: Dr Bedard, is it really your position that while a person holding an edged weapon can cross 7 yards and make contact faster than a trained policeman can react, draw, and fire, but that a person not holding such a weapon cannot?! Please explain to me, in simple words because I’m a bit slow, what magic exists in edged weapons that makes their bearers move faster? Do they work something like seven-league boots? Or do empty hands somehow slow a person down, so he can’t move as fast as someone holding a knife? I’m having trouble picturing the physics of this assertion.
That would have been hilarious.
Oops, those italics should have stopped at the “?!”.
The 21′ defense doesn’t matter when Drejka initiated the confrontation that ended in him shooting a participant. We’re all here pretending that we would have done something different than the deceased did seeing a stranger aggressively arguing with significant other? I’m not entirely convinced the deceased acted irrationally or disproportionately. Others of us, if we were having a bad day, might act with equal aggression.
Drejka was guilty before he pulled the trigger of provoking a confrontation. Yeah, it went physical, but it certainly wasn’t a justifiable defense. This has done nothing to weaken the 21′ rule, so stop panicking. Just don’t provoke a confrontation and you’ll be fine.
Actuaally, McGlockton broke the law when he shoved Drejka. D was not doing anything which would have allowed M to use any kind of force against him in defense of himself or another. M committed a criminal battery.
Engaging an verbal argument with another is not a criminal offense. So, Drejka, while he may have acted like a jerk, prior to encountering M, committed no crime, until he shot M.
There is also the fact that until McGlockton shoved Drejka the two had not interacted, the “verbal confrontation” was between Drejka and the woman in the car.
It’s not a pretense. We all would have done something different, and if you would not have then you are a criminal.
I’m not entirely convinced the deceased acted irrationally or disproportionately. He acted criminally, and there is no dispute that had Drejka shot him at that moment he would have been justified. Not even his harshest critics dispute that.
That is not a crime, or any kind of offense. He had every right to do so.
His verbal altercation with the driver wasn’t any kind of defense; it didn’t need to be. The whole issue of defense didn’t arise until her criminal thug of a boyfriend arrived and viciously attacked him without any kind of justification.
You would have sounded great telling black people that if only they weren’t uppity the Klan wouldn’t have had to lynch them.
Actually I can tell you with 100% certainty that I would never attack someone from surprise for yelling at a significant other. I wouldn’t attack first period. I don’t have to pretend.
Seems clear from the video that when Drejka first reaches for his gun, that action stops an impending second attack by McGlockton.
Notice that when McGlockton first emerges from the store he prepares himself for his initial attack on Drejka by hitching up his pants, then actually keeping them held up high until the moment he attacks. Evidently he was one of those falling-down-pants guys and to have maximum freedom to act physically he needed to get his pants up off his thighs.
Now notice what he does when he approaches Drejka after knocking him down. Just before Drejka reaches for his gun McGlockton snaps his pants up, like he’s about to do something.
Drejka does not know that this is what McGlockton does just before he attacks because he did not see the first attack but WE know it and everyone at the trial should have known it.
When McGlockton sees Drejka reaching for the gun he almost jumps back with a quick flinch reaction. A reasonable inference is that by reaching for his gun Drejka most likely deterred an immediate follow up attack.
McGlockton retreats a couple of quick steps then SLOWS his retreat and in the half second before he is shot he is actually counter-rotating his upper body back to the left, suggesting that he was actually at this point starting to turn back around.
You can tell this by noticing in the video that just before the shot McGlockton’s lower body is turning right, away from Drejka. His right foot is planted and his left side moving clockwise to take a step forward towards the store entrance.
But notice that his upper body is NOT turning right. He has a white design on the front of his shirt and the visibility of the design remains unchanged. It is not coming more into view as it would if his upper body was moving with his lower body.
That means his upper body is counter-rotating back towards Drejka vis a vis his lower body. That counter-rotation by itself could easily look to Drejka like McGlockton is turning back towards him, and physically this is what it would normally LEAD to. After McGlockton plants his left foot the build up of counter-rotation in McGlockton’s upper body would bring his right foot around to the left into a side-plant.
So five seconds earlier Drejka WAS attacked. Two seconds earlier he momentarily forestalled an imminent second attack and now it looks like his attacker is turning back on him again.
Also notice how McGlockton’s counter-rotation happens at the most critical moment. The gap between Drejka getting his gun onto McGlockton and his pulling the trigger lasts in my estimation a quarter to a half a second. Drejka starts drawing earlier, but it takes him time to get sighted on McGlockton, then the shot comes at most a half second later.
It is over this short interval between pointing and shooting where McGlockton’s upper body can be seen to be counter-rotating to the left of his lower body.
Did Drejka perceive this counter-rotation and perceive it as McGlockton turning back? Probably at some level, and that’s a pretty strong defense. He might have just drawn and shot as fast as he could (which could be justifiable), but if he did make and assessment before shooting, what was happening at that moment was McGlockton apparently stopping his retreat.
Why was McGlockton counter-rotating back towards Drejka. The obvious inference is that he wasn’t done, and we already know what he was doing: he was attacking. He had ALREADY attacked. So if he’s not done it’s a clear on-going threat situation.
That doesn’t mean that deadly force was necessary/proportional or that imminence was satisfied. As Andrew notes, the “21 foot rule” is for a gun that is not drawn yet. But it seems that none of these considerations were properly put before the court and weighed by the jury.
Another factor on Drejka’s side is that he was not facing just one potential foe but also McGlockton’s girlfriend, who had just gotten out of her car to confront Drejka when McGlockton launched his initial attack.
In that situation it is dangerous for an attacked person to maintain tunnel vision on his attacker. He has two people to worry about, which is a very good reason for McGlockton to keep retreating and not turn back.
He didn’t want to leave his girlfriend? All that does is remind Drejka that McGlockton has a potentially violent ally who is also in close proximity.
The prosecution depicted McGlockton as heroically coming to his girlfriend’s defense. No, he came offensively and criminally to the side of a girlfriend who was under no physical threat.
After the initial attack she is obviously someone who Drejka needs to worry about too. Notice in the video that like McGlockton she was moving TOWARDS Drejka right after McGlockton first knocked Drejka down, then like McGlockton she flinches from forward to back at the sight of the gun.
Also like McGlockton she does not unambiguously retreat at the sight of the gun. She points towards it. She is communicating with her partner, who just committed a crime.
We can see in the video that Drejka does not forget about the woman. After he shoots McGlockton he keeps his gun on him until McGlockton is back in the store, then about two seconds later he looks over towards the woman, then he looks down and picks up something from the ground. So he apparently did manage to maintain the situational awareness that he was dealing with two people, not one.
Andrew does not discuss the woman but this seems like another factor that got bent backwards by the prosecution with probably no correction by the defense. The woman’s presence makes Drejka’s position substantially more dangerous, once she is revealed to be allied with a criminal assailant.
If Drejka lets himself remain occupied by McGlockton (by not shooting him) after McGlockton has stopped retreating then he can’t keep an eye on the woman circling to his right.
Until I noticed the motions of the woman I was thinking that if I am ever in Drejka’s position I sure hope would forebear shooting unless the attacker came back towards me but the woman really complicates it.
Breaking the 21 foot rule because you already have your gun drawn presumes you are not going to break your focus, but can you do that when your assailant has an ally who is also within 10 feet? In this case McGlockton’s stopping his retreat would seem to close out your options.
I’m beginning to think I’d have a hard time rejecting Drejka’s self-defense claim on imminence, proportionality and reasonableness. My biggest sticking point might be innocence.
The dude DID create a ridiculous amount of VERBAL conflict over a triviality. When the other side then escalates that conflict, doesn’t the verbal instigator maybe bear some extra responsibility for not re-escalating? I’d be asking for jury instructions on innocence.
If it had been McGlockton’s girlfriend who had initiated the verbal conflict before McGlockton physically attacked then I don’t see much doubt Drejka would be justified in shooting. It’s his role in creating the situation that casts the most shadow on justification.
M actually stops advancing on D prior to D sitting up and beginning to draw his weapon. M could have kicked D while D was down, or jumped on him, al a Trayvon Martin. He did not. M DID retreat immediately upon suspecting that D was drawing a pistol. This is not an attack, it is a retreat and totally understandable. As you note, M’s lower body is turning to the right, in the classic manner consistent with moving in that direction. Now, as it would be very difficult to move toward D with ones feet in this position, and M does not have any weapons, distance or otherwise, in his hands, the position of his upper body would be irrelevant to his ability to mount an imminent attack on D. Also, M was struck in thr left side, by the b ullet. Not in the from of the torso. This indicates that his body was already turned to the right when D fired.
As to multiple potential threats, surprise! This is real life. And, you can only use force to defend yourself from an obvious imminent threat, not from some nebulous future threat. If M was not mounting an imminent attack on him, D could not legally shoot him, even if M’s girlfriend WAS mounting such an attack. However, again, we have no evidence that any attack was imminent from either person.
This was a very, very simple case. Under Florida statute, was D legally justified in using deadly force against an unarmed attacker who had retreated. The answer was NO. People can try to excuse D on the grounds that he was confused or incompetent, but that is not a viable defense in the case of manslaughter.
Now, had D waited another second, before he fired, we would know if M intended to walk away or performs some incredible Hong Kong Kung Fu movie move to attack D. But, he did not. He chose to fire when he did and no he has o justify that action. In this case, it was impossible for him to justify it. He lacked the mindset, training and experience to perform properly so as his actions would remain lawful.
As to D’s argument with M’s girlfriend, that was neither illegal nor violent. M had no legal right to physically attack D. He committed a criminal offense. Just not one which would allow D to use deadly force against him for.
“M actually stops advancing on D prior to D sitting up and beginning to draw his weapon. M could have kicked D while D was down, or jumped on him, al a Trayvon Martin.”
He stopped to hike his pants, which he had to to before he could attack. We already saw that on the first attack. Then right after he snaps his pants up he sees Drejka going for the gun and flinches hard. No way he stopped himself. He was stopped by the gun.
And that makes a difference right? Not only was Drejka attacked but he had already stopped a second attack, and now McGlockton was stopping his retreat.
Also pretty sure you are wrong about the possible threat posed by the girl. Did Drejka notice that she was also starting to move up when he was on the ground then flinched back when he reached for his gun? It’s possible. He certainly remained aware of her.
You seem to think that he has to consider any threat she poses separately but Ayoob wrote of a case once where a street gang nominally just asking for charity surrounded a guy after he said “no,” so he drew and shot 2 or 3 of them.
He either wasn’t charged or wasn’t convicted, I forget which. Either way, the ruling principle was that he was allowed to react to the different individuals according to the combined threat that they posed.
“Travesty of Justice …” – please now consider offering a comparative analysis with this case: https://armsandthelaw.com/archives/2019/08/interesting_916.php#comments … https://newsmaven.io/pinacnews/eye-on-government/parents-of-man-killed-by-off-duty-lapd-cop-in-costco-demand-justice-not-coverup-F5flsuS240i0rcOi1APjEA/
Go ahead. I’m particularly interested in your thoughts on why that case would be relevant to this case. Should be fascinating.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Counselor,
First, you use “Travesty of Justice”; I offer another “travesty”. The case that obsessed you involves “a shove” and “an armed response” resulting in death – so does the one I offered (from another credible attorney’s site). The difference can be reduced to one involved “an armed citizen” and the other an “off-duty LAPD officer” as the respective “shooter”.
There was nothing in the intent, substance or tone of my cogent comment – “… please now consider …” – which should have caused you to select my posting as the only one (of approx. 155) to which you were compelled to respond.
But if you want to spar (I am not an attorney; nor have I any “use of force” credentials, but I have had many significant legal experts in other areas report to me over decades of litigation – I have some understanding of the continuum of legal approaches/personalities) let’s consider: (i) you are extremely precise in your analysis of statutory legal requirements; (ii) you have been trained to “know” that every “conflict” can be reduced to “one being ‘right’ (as prescribed by ‘law’) or ‘wrong’” at the moment that “counts”; (iii) you implicitly assume that regardless of jurisdiction “the there ‘law’” is “lawful”; (iv) … (no further analysis needed).
You’re selling “FEAR” as actionable legal advice (STOP – there is not “Attorney-client Relationship” thus there is no legal advice offered (please note the “Capital – ‘A’” and “little – ‘c’”). …
Another site got it “Right”. All the rest of us (“non Attorneys”) can learn from the TWO cases is “HOW NOT TO BEHAVE.”
https://www.backwoodshome.com/blogs/MassadAyoob/confluence-of-fools-the-drejka-case/comment-page-1/
Why don’t YOU make your point clear?
I looked at your case and there is mothing in common with this case, other than there is a dead person(s).
Comments from a retired LEO.
First and foremost, lots of barracks lawyers on this post. Like most barracks lawyers, too much conjecture and not enough legal education.
As far as I am concerned, a dirtbag is dead, and too bad that the defendant didn’t wait a millisecond for the dirtbag to stop dancing and advance. Nonetheless, a dirtbag is now taking a permanent dirt nap.
For those who say that Tueller does not apply in this case are incorrect. Any research into criminal action is accepted as defense, and it is up to the jury to apply that rule to the circumstances.
Self defense is acceptable even without a physical weapon external to the body. Many states recognize that hands and feet are in fact deadly weapons. My attendance at the police academy in the early 80s covered this. Courts have found that various parts of a body can be weapons, including: hands, feet, teeth, the mouth, and even elbows or knees.
In deciding if a body part is a deadly or dangerous weapon, courts will consider the following factors: the manner of blows, hits, or kicks; the degree of force used; the number of times the defendant struck, kicked, or bit the victim; the extent of the victim’s injuries, and; the location of injuries on the victim’s body.
Additionally, self defense is justifiable when deadly force is exercised. Weapons external to the body are not a limitation. Pushing, shoving, and other physical harm can warrant deadly force.
I don’t necessarily disagree with the verdict under the circumstances, but I do believe the defense team are incompetent and I am glad I will not have to rely on them to keep me out of jail.
The defendant should have minded his own business about whether someone was or was not parked illegally. If he didn’t own the property, it was none of his business. I am no wall flower by any means, I carry everywhere I go, and am prepared to use deadly force as necessary. But I don’t get involved with any situation that I have no need.
Thanks for all the churning, but the victim was shot while backing away. None of your contingencies about when this or that body part is a weapon has the slightest bit of relevance to this case. You know it, if you’re indeed a retired LEO.
Pushing and shoving can be met with deadly force if they place the victim in imminent jeopardy of grave injury or death, but you cannot shoot someone simply for shoving you to the ground. You know that too, if you’re indeed a retired LEO.
All you’ve done here is continued the author’s coulda-woulda-shoulda verbal masturbation, with “dirtbag” being the cherry on top. But if you’re indeed a retired LEO, then you know that we don’t yet have the death penalty for being a dirtbag, no matter how much we might otherwise agree that we don’t like him one little bit.
what we think is essentially irrelevant–what matters is what D thought in the moment–the video presents a limited perspective–it’s not the zapruder film–silly me, have always heard/believed that the presumption of innocence extends to the accused, as does reasonable doubt–all these armchair warriors(including rc)with their 20/20 hindsight analyses–bullshit–we weren’t there and, more important than anything else, we did not see/hear this event from D’s perspective
the defense blew it
Yep, as I have said from day one, we have no idea what McGlockton was going to do next. Any and all analysis are basically mind reading.
We have no idea what D was thinking*, other than being able to use our imagination about what we would think after being violently knocked to the pavement.
The correct call is to assume innocent until proven guilty. This was not done.
* we have his statements of course