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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



     
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    texansamurai | August 25, 2019 at 9:48 am

    so it’s ” reasonable ” to subjectively determine M’s intent, though he’s dead so we cannot definitely know and then ” not reasonable ” (besides also subjective)to extend the same doubt as to why D didn’t fire quickly enough?

    come on


       
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      Mac45 in reply to texansamurai. | August 25, 2019 at 12:49 pm

      Actually, as M was retreating before D pointed the pistol at him, D never had the opportunity to fire “quickly enough” to justify the shooting. D’s problem was that he fired too soon. The video evidence clearly showed M retreating. The video evidence failed to show that M made any movement which would bring him closer to D. So, what D should have done was to wait a heartbeat after M began his turn to the right to determine what M’s intent was. He jumped the gun.

    Prosecution charged it; jury confirmed. Is what it is. Don’t like. Don’t do it?


     
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    texansamurai | August 25, 2019 at 12:43 pm

    defense blew it


     
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    RandomCrank | August 25, 2019 at 10:13 pm

    I write as a life member of the NRA, the holder of three concealed carry permits, and a daily concealed carrier who regards part of getting dressed as putting on my gun. I see the second amendment as an integral part of our American rights.

    I agree with the verdict, and would like to point to what I believe to be long-established common law applicable in every state regarding the use of deadly force in self defense. The application of the law will vary with juries and prosecutors, but not the law itself. Some states go further and allow the use of deadly force to protect property, but in every state the following applies.

    To sustain a claim of self defense with deadly force, you must show that you had a reasonable fear of imminent grave injury or death. The assailant must have had the ability and the opportunity to cause those things, and the defender must have been in imminent jeopardy, with reasonableness being the standard.

    Anyone who views the video can see that the shooter in that case fired his weapon as the assailant was retreating. There’s no ambiguity about it. Thus, no jeopardy. No jeopardy, no self defense. Guilty as charged. For that reason alone, if I’d been on the jury, I’d have voted to convict.

    There is more to say.

    In practice, any claim of self-defense will be badly undermined if the “defender” was involved in a confrontation, altercation, or argument that escalated — especially if he instigated it. Furthermore, carrying a firearm does not confer general police power on the carrier. It can only be used to defend one’s self, or others in proximity, against a deadly threat as interpreted by the elements of ability, opportunity, and jeopardy.

    As an example, if I am carrying and see someone breaking into a car in a grocery store parking lot, I am not empowered to use or threaten deadly force to stop it. If I witness a bar fight, I’m not empowered to draw my gun and break it up. On the other hand, if I’m at a 7-Eleven and a robber enters the store with his gun drawn, or starts beating the cashier with a lead pipe, I can use my gun because the elements of ability, opportunity, and jeopardy are present.

    For a good layman’s guide, see this link:

    http://www.corneredcat.com/article/legal-concerns/ability-opportunity-jeopardy/

    This case is right smack out of the textbook. It is as clear as these things ever get. The shooter did everything wrong. He initiated the altercation; he assumed police powers; he used deadly force in the absence of jeopardy.

    Carrying a firearm entails a grave responsibility, part of which is a clear sense of one’s limitations. It does not make the carrier the arm of truth, justice, and the American way, much less the enforcer of parking laws. It doesn’t matter if the person he shoots is someone we dislike or disdain, even if we have good reasons for doing so.

    A carrier of a weapon can use it only in emergencies as defined by ability, opportunity, and jeopardy. I hope this case becomes a standard part of concealed carrier training everywhere.


       
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      Barry in reply to RandomCrank. | August 25, 2019 at 10:19 pm

      You need to go back and read the 2nd.

      “It is as clear as these things ever get. The shooter did everything wrong. He initiated the altercation; he assumed police powers; he used deadly force in the absence of jeopardy.”

      Every single word of that is wrong.


         
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        RandomCrank in reply to Barry. | August 26, 2019 at 10:45 am

        The second amendment recognizes the right to keep and bear arms for the purpose of self defense, that being the interpretation of the 2008 Heller case. The AOJ doctrine defines self defense; because the shooter in Florida was not in jeopardy, it was not self defense and therefore not a second amendment issue.

        I am as strong a proponent of armed self defense as you will find. I’ve never been even suspected of a crime, much less arrested, investigated, prosecuted, or convicted. I am 100% on the side of the law-abiding armed citizen. But self defense is not a license for revenge, anger, or vigilantism, and carrying a gun does not make the carrier into a police officer.

          “The AOJ doctrine defines self defense”

          No. AOJ defines “imminence” which is ONE of the (up to) FIVE elements that define the legal defense of self-defense.

          Sadly, poorly informed instructors routinely teach AOJ as if it were the entirety of the legal defense of self-defense. They are mistaken, and as a result their students are misinformed and made vulnerable to legal prosecution and conviction if they rely on such misinformation in defending themselves.

          –Andrew

          Attorney Andrew F. Branca
          Law of Self Defense LLC


             
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            RandomCrank in reply to Andrew Branca. | August 26, 2019 at 11:09 am

            Please elaborate. Unlike many if not most keyboard warriors, I am not only willing but am eager to be corrected by people who know more than I do.

            One of the things that trainers do is encourage people like me to run “scenarios” in their minds. When I do that, my focus is on jeopardy and on making sure that I don’t endanger any bystanders if I have to use my firearm.

            I’m interested in what you have to say, and especially in how to incorporate that into my practical thinking. Thanks in advance.

            Please elaborate? Sure:

            https://lawofselfdefense.com/law-of-self-defense-book/

            –Andrew

            Attorney Andrew F. Branca
            Law of Self Defense LLC


             
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            RandomCrank in reply to Andrew Branca. | August 26, 2019 at 11:18 am

            It would be impossible for me to overstate how much I’ve relied on AOJ in my thinking about armed self defense. If I’m wrong, trust me, I really want to know. Again, I ask that your correction be useful and practical. You have absolutely gotten my close attention.

            I’ve pointed you to the single most comprehensive book on the subject for lay persons, at a cost of less than $20.

            If you’re genuinely interested, exercise some intiative and spend a modest sum to inform yourself. If not, that’s fine, too.

            Good luck.

            –Andrew

            Attorney Andrew F. Branca
            Law of Self Defense LLC


             
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            RandomCrank in reply to Andrew Branca. | August 26, 2019 at 11:29 am

            You’ve done an effective job of selling you book to me. I just ordered it, along with the home state DVD. I hope this will give me practical and useful additional information. I’m going to go through the material that I just ordered for $68 and change, but I can’t memorize a law book. We shall see.

    I’ve been and am now ever grateful for having trained with Mr. Branca. While varying jurisdictions will emphasize some elements more than others, there are FIVE elements to a self-defense claim made by a defender. And they are: Provocation, Imminence, Proportionality, Avoidance and Reasonableness. They must all be concomitantly met by Defender. Prosecution needs to disprove only one “beyond a reasonable doubt” and off goes Defender with a fresh jar of Vaseline.

    For the absolute straight scoop on the multiple issues involved, then, for God’s sake, buy his book, subscribe to his site, and get the best self-defense education you can get from anybody, anywhere at any time and certainly for the pennies it costs to get it. Had Drejka done that, I’m betting he’d be enjoying the rest of his life with his children and grandchildren, and so, perhaps, would McG. (disclaimer: I do not get recompense from LOSD for recommending it).

    Unless your trainer has acquired such training, he/she is NOT one you want to depend upon for LOSD training. And you sure as hell don’t want to depend upon somebody who is a former sandbox operator where the rules of engagement are entirely different as to civilians, or even LE, where also the rules of engagement of different in blatant as well as subtle ways compared with the private citizen.

    And, NO, juries don’t recognize a “good shoot” when the see one; and, I know of two cases where otherwise “good shoot” actors are still in prison, and will be for the rest of their lives because they didn’t know WTF they were doing from a legal perspective.


       
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      RandomCrank in reply to Marcus. | August 26, 2019 at 12:10 pm

      I’ve ordered his book because the question of when I can legally exercise armed self defense is at the front of my mind.

      Just glancing at those elements, and then thinking about how I live and the situations in which I can imagine I might have to defend myself with my firearm, the only one that I have immediate questions about is proportionality.

      I will certainly read all of it, but I frankly think I have the other four of them covered both in daily behavior and the “scenario-izing” (hey, I just coined a word) that I do.

      Here’s a question: My belief is that if an aggressor has drawn a gun in a robbery or other unprovoked attack, AOJ have been satisfied along with those other elements you’ve mentioned, and I’m free to shoot him. At that point my only worry would be the standard gun safety rule about making sure to know who’s behind the target or might cross your line of fire.

      Am I correct?


       
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      RandomCrank in reply to Marcus. | August 26, 2019 at 12:21 pm

      For example, provocation and avoidance would be covered by the constantly repeated training advice to avoid arguments, altercations, and confrontations while carrying, and to de-escalate and leave the scene if possible.

      If someone breaks into my house while we’re home, they’ll be staring down the barrel of a gun. To get into our place, you’d need to have objects that could be then used as weapons. We have sturdy doors and triple-pane windows, and everything gets locked up.

      Where we live, the few home invasions are done by meth tweakers. An invader at our place would not want to move toward me after being ordered to get on the floor.


       
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      RandomCrank in reply to Marcus. | August 26, 2019 at 12:24 pm

      Imminence and reasonableness are covered by AOJ. The only missing piece to me is proportionality. I think this might be covered by AOJ too, but I’ll have a look.


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