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    VERDICT: Michael Drejka Guilty of Manslaughter

    VERDICT: Michael Drejka Guilty of Manslaughter

    Handicap parking spot shooter looking at 25 to life

    Last night “handicap parking spot shooter” Michael Drejka was found guilty of manslaughter, as charged, for the shooting death of Markeis McGlockton. The verdict was returned quickly last night, after the jury had deliberated only a few hours.

    Drejka shot and killed McGlockton after McGlockton violently shoved Drejka to the ground in a convenience store parking lot. When shoved, Drejka had been verbally chastising McGlockton’s girlfriend for having unlawfully parked in a handicap parking spot.

    As captured by surveillance video, once on the ground Drejka drew a pistol and pointed it at McGlockton, who remained standing over Drejka. Seeing the gun, McGlockton took several steps back and appeared to begin to turn away from Drejka. It was at this point that Drejka fired the single fatal shot. There was roughly a two-second interval between the presentation by Drejka of his gun and the firing of the fatal shot.

    You can view that video here:

    The case immediately became something of a media circus when the local sheriff mistakenly decided that Florida’s self-defense immunity law, §776.032, prohibited him from arresting Drejka for the killing. (I addressed this at length here: Law of Self Defense: VIDEO: Shove-Shoot Case Sheriff’s Statement.) Nevertheless, local prosecutors soon brought a charge of manslaughter against Drejka, and Drejka was found guilty of that charge by a Florida jury late last night.

    Although sentencing isn’t scheduled until October 10, there seems little ambiguity in what that sentence is likely to be. Florida’s “10-20-Life” firearms sentencing statute, §775.087, mandates a 25-year-to-life sentence for a crime committed with a gun in which the gun is used to shoot and kill a victim. Drejka turned 49 earlier this month, so he would be 74 years of age before there is a possibility of his release from prison.

    Drejka’s legal defense to the charge of manslaughter was, of course, self-defense. As such the only real legal issue in the case was whether, at the moment Drejka fired the fatal shot, he had a reasonable belief that McGlockton presented an imminent deadly force threat (meaning a threat reasonably capable of inflicting death or serious bodily injury).

    Note that this is a different question than whether Drejka was justified in presenting his gun in the first place. It’s quite possible for Drejka to have been legally justified in presenting the gun without being legally justified in firing the shot. I addressed this issue at length in this blog post the day after the shooting occurred: Law of Self Defense VIDEO: Just because it’s lawful to present the gun doesn’t mean it’s lawful to press the trigger (7/20/18)

    In evaluating whether Drejka reasonably perceived an imminent deadly force threat from McGlockton at the time he fired the shot, it’s important to differentiate between facts and claims that are relevant to that question and those that are not. Frankly, it seemed to me in my quick review of the trial testimony and argument that there was an excessive emphasis on irrelevant matters.

    To start, even the video itself is not decisive on the question of whether Drejka was seeing what the video camera was seeing, if only because of differences in position and angle. Also, the camera had not just been thrown violently to the ground, a physical experience that can affect perception. The reasonableness of Drejka’s perception of a threat is properly judged in the context of a person in his circumstances—that is, was it the reasonable perception of a person who had just been violently thrown to the ground?

    Related, it doesn’t matter if McGlockton actually presented a deadly force threat to Drejka. Rather, it only matters if Drejka reasonably perceived such a threat.

    The prosecution made much of the fact that McGlockton was, in effect, killed for trying to protect his girlfriend and children. Really, it doesn’t matter why McGlockton shoved Drejka. It is irrelevant whether McGlockton’s motivation for shoving Drejka was good (e.g., he was protecting his girlfriend and children) or bad (e.g., he was going to teach this obnoxious stranger a lesson he wouldn’t soon forget!), so long as McGlockton’s use of force was unlawful (which it clearly was). All that matters is whether Drejka could reasonably have perceived that he remained in imminent danger of a deadly force attack at the moment he fired the shot.

    Conversely, much was made by the defense in this case of the fact that, apparently, McGlockton had relatively high levels of illegal drugs in his system at time. Frankly, this is also irrelevant under the facts of the case. McGlockton being intoxicated could be relevant if there was some dispute as to whether it was McGlockton or Drejka who was the initial physical aggressor in this case or if the drugs involved tended to induce violent behavior, but that issue was not in dispute. The video clearly shows that it was McGlockton who was the initial physical aggressor.

    I’ve already mentioned that the reasonableness of Drejka’s perception of the threat must be assessed in the context of a person in his circumstances, specifically that of a person who has just been violently thrown to the ground. If being subject to that physical attack led him to make imperfect use-of-force decisions, the responsibility for those errors is not on Drejka, but on McGlockton who subjected Drejka to that force.

    Unfortunately for the defense, even my quick review of the testimony from the state’s witnesses on the scene shortly after the shooting occurred undercut any claim that the impact of McGlockton’s attack had degraded Drejka’s ability to make sound use-of decisions.

    Drejka complained of no meaningful injury at the time that could have reasonably affected decision making. There was, for example, no evidence of Drejka having struck his head on the ground as a result of being shoved there, there were no complaints by Drejka of being disoriented in any manner, Drejka never requested any meaningful medical attention, and so forth. So, while one might suppose that being knocked violently to the ground could readily cause imperfect use-of-force decision making, there appeared little evidence supporting such an inference, and considerable evidence lacking.

    Absent such disorientation, it would be expected that Drejka’s perception of McGlockton’s conduct after presentation of the gun would accurately reflect what the surveillance camera appeared to capture—McGlockton realizing that he’d brought his fists to a gunfight, deciding that discretion was the better part of valor, and backing away from the fight.

    This case is an excellent example of how tiny changes in the fact pattern could lead to drastically different legal outcomes. If McGlockton had made any apparent movement consistent with re-engaging Drejka, Drejka’s perception of an imminent attack would likely have been unquestionably reasonable. Even a mere shift of McGlockton’s body weight toward, rather than away from, Drejka might have been sufficient. Such evidence was not in the case, however.

    Also extremely unhelpful to Drejka was his post-event interrogation by police, to which he voluntarily consented, without legal counsel present. In that interrogation a happily compliant Drejka, believing he’s just helping the police understand why his shooting of McGlockton was no problem, hardly an inconvenience, as the internet meme puts it, agrees to conduct a re-enactment of the shooting.

    It goes without saying that any re-enactment in an enclosed space is going to be an imperfect reflection of what happened out in an open parking lot, and the differences between the two in this case were not advantageous to Drejka. I covered this interrogation at some length, along with video of the interrogation itself, here: Examining the Michael Drejka (Handicap Spot) Interrogation (10/28/18)

    (Not relevant to Drejka’s guilt, but a useful cautionary tale, is the fact that one of the police officers who conducted this interrogation would later be arrested for arriving at a crime scene in his official vehicle while driving intoxicated: The Risks of Being Judged By Strangers.)

    There may be circumstances in which it is prudent to speak briefly with police responding to the scene of your self-defense event, although the default position should always be to simply request legal counsel (and medical attention, if appropriate). There is never, however, any good reason to be speaking at length to anyone about the event without first consulting with legal counsel, and there is never, ever, ever any good reason to voluntarily engage with professional interrogators without your legal counsel actually present (if then).

    Drejka’s past conduct involving claims that he had allegedly threatened strangers with shooting, under circumstances in which shooting would clearly have not been lawful, was also extremely damaging to his narrative of innocence. It created the impression (perhaps correctly) of a hothead who was quick to threaten to go to the gun when doing so was unlawful and unnecessary. State prosecutors presented at least two witnesses who testified to this effect, and the testimony was of a sort not readily subject to effective impeachment by the defense.

    OK, folks, I may have more to say on this case later, but I’m short on time today, so this will have to wrap things up for this post. Go to it in the comments.

    –Andrew

    Attorney Andrew F. Branca
    Law of Self Defense LLC
    Law of Self Defense CONSULT Program

    [Featured image is screen capture from video of verdict being read in court.]

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    Comments


    How much self-defense insurance do you have? What is the political stance by the jurisdiction in which the shooting takes place as to self-defense? Has the Judge ever tried a self defense case? Is the DA up for re-election or promotion? What’s your Facebook, Instagram, Twitter, etc. presence? What’s your reputation in your community as to firearms? Etc., etc., etc., Why would you assume LE powers? Would you walk into the common area where robber was from an adjacent office and engage him? And bad guy doesn’t know you’re in there? And you take him out, but an errant round from his weapon strikes and kills a beloved teller who happens to be the daughter of the local DA? Are you sure your jurisdiction has a “felony murder” rule? Do you know what such a rule is? Quick Q for you? Do you know what “seeded backup is?” Are you sure you want your actions to turn the event into a shit storm?

    Only the jury will have the power to determine if you are correct or not, Random Crank. I’m not arm-chairing this, either, because I know all to. well what the situation is like in the scenario you’ve described. Everybody went home breathing free air (such as it is), the perpetrator not so much because he was arrested long time after this incident in another jurisdiction. LOL LOL


       
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      RandomCrank in reply to Marcus. | August 26, 2019 at 1:19 pm

      I live in WA State, and the liberal insurance commissioner ruled that self-defense policies are illegal. So I can’t get one. On the other hand, WA State requires the state to pay the attorney of anyone charged but acquitted on grounds of self defense. And I’m in a rural county where male CPL permit holders outnumber eligible male non-permit holders. Plenty of women shooters and permit holders here too.

      In the Florida case, the whole thing started when the shooter decided to try to be a parking law enforcer. You don’t do things like that when carrying. I very strongly doubt that I’d willingly enter a situation where an attack was in progress.

      If I were in such a situation, I wouldn’t fire without a clear line of sight and knowing what’s behind the target. I load factory-made Hornady Critical Defense ammo in my 9mm carry pistol; I won’t say that overpenetration is never an issue, but it’s not likely to be one.

      I know what “felony murder” is an am pretty certain that this is the law in both WA and OR. I don’t have a reputation in my community one way or another gun-wise. I’m only on FB, and when I talk about self-defense I emphasize AOJ and responsible carrying. I never heard of the term “seeded backup,” and an internet search didn’t yield anything, so maybe you can explain it to me.

      Keep in mind that no one can reasonably be a walking textbook. I ordered the guy’s book and will read it, but the more I think about it, the more I think I have a good understanding. That said, if there’s something useful to learn, I’m all for it. The day you stop learning is the day you die, as far as I’m concerned.


     
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    Fromage Du Nord | August 27, 2019 at 10:35 am

    In my opinion a big issue is that the woman got out of the car as her man was approaching. So now it is a 2-on-1 situation and the threat appears much greater. was this part of the defense argument? Does this justify the shooting? I don’t know. I just find it dishonest of the woman to claim she was in fear of her life and the safety of her kids, but she gets out of the car to confront. This fact also makes the prosecution argument regarding “protecting his wife and children” weaker. IMHO she she saw her man approaching from behind, knew a beat-down was about to commence, and wanted in on the action. There was no “fear” present for either of them.


       
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      RandomCrank in reply to Fromage Du Nord. | August 27, 2019 at 12:44 pm

      Irrelevant. The case was about shooting a retreating man.


       
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      McBain in reply to Fromage Du Nord. | August 27, 2019 at 7:53 pm

      The defense brought up the girlfriend and a third person as potential threats to Drekja.

      I think it just came down to the amount of time from when he pulled his gun to when he fired. I don’t remember the defense talking about how long it takes to make such a decision and how difficult it can be to stop that action based on new developments. That’s what I was interested in learning about.


     
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    texansamurai | August 28, 2019 at 7:39 am

    time–distance–intent

    believe the fact that D didn’t fire immediately speaks to his willingness to give M a chance to de-escalate the situation and also speaks to the fact that D was actually in command of his faculties at the time

    regardless of M’s movements, to try and divine his intent from the video only is one hell of a stretch–M is dead and therefore we are unable to know for certain

    2 or 3 meters distance is negligible in a street fight, especially when you’re on the ground in a defensive position and the attacker has previously assaulted you within the last few minutes

    something, and cannot be discerned from the video because of the camera’s POV, prompted D to fire, either M’s movements, words, body language or possibly those of one or two other potential attackers

    what was D thinking? what was in his mind and was it inconsistent with what a ” reasonable man “(or a juror)might think and feel in a similar situation?


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