What follows any controversial deadly encounter caught on camera is a barrage of opinions from keyboard commandoes and wannabe legal experts claiming to know “the truth” about the circumstances surrounding the shooting, about whether the use of force was justified, about what will happen to the defendant, etc. etc. etc.
While it’s fine for average Joes to weigh in, it’s quite another when they attempt to pass off their opinions as real expertise. In an attempt to elevate the level of discussion out here on the Interwebs, GunsAmerica reached out to two attorneys to get actual professional insight on that fatal shooting in a Florida parking lot last month that has everyone talking (see video above).
One is a defense attorney who specializes in all things 2A-related and who regularly handles firearms criminal defense cases; the other is a 2A-friendly prosecutor with tons of jury trial experience prosecuting murders and an Iraq war vet. Both asked that we not disclose their identities because they’d rather not deal with butthurt Internet trolls messaging them at their offices.
Question 1. To start, let’s forget Florida law and the specific details of the case for just a moment, and just ask a general question. Under what circumstances, if any, is one justified in using deadly force against an individual who just shoved him or her to the ground?
Seems to me that if there’s not a glaring disparity of force in play, like maybe a grown man violently shoving a fragile 90-year-old woman to the ground and seriously injuring her, then it’s hard to think of a situation when a shove warrants the use of lethal force. Your thoughts?
Defense Attorney: I agree. I think it’s really a stretch to think there’s ever a time that you could simply shoot someone for just pushing you to the ground. Usually, to justify using deadly force you need to have a reasonable belief that you are going to be seriously injured or killed. Being pushed just doesn’t get you there. I’m not sure that a disparity of force would even get you there unless you reasonably believed the violence was going to continue and that this was your only chance to survive being killed. If we want to get creative, we could argue that a push could be deadly if it was over a cliff, or into a speeding car, raging river, etc. Even that is different from the facts here because in those examples it’s not the push that will cause you the imminent harm, it’s the landing.
Prosecutor: Let me put it this way. Unless you are made of glass and your bones will shatter from the fall, you do NOT have the right to use deadly force from a mere shove to the ground. The jury is not going to buy that as a reasonable use of force in any state.
Question 2. Turning to the case, the available facts indicate that 47-year-old Michael Drejka shot and killed 28-year-old Markeis McGlockton in July after McGlockton shoved Drejka the ground. What prompted McGlockton to push Drejka was the fact that Drejka had confronted McGlockton’s girlfriend who had parked in a handicap space at a convenience store in Clearwater, Florida.
Pinellas County Sheriff Bob Gualtieri initially announced that he would not arrest Drejka because the shooting “is within the bookends of ‘stand your ground’ and within the bookends of force being justified.” He added, “I’m not saying I agree with it, but I don’t make that call.”
We found out this week, however, that Pinellas County State Attorney Bernie McCabe is charging Drejka with “manslaughter.”
“I went through it all and made the legal decision that that is the charge that we could prove,” McCabe told NBC News.
There’s a lot to unpack here, but is it common for there to be such a disconnect between the way law enforcement analyzes a case and the way prosecutors analyze a case? I mean there’s a huge gap between “That shooting was lawful, so no arrest” and “Nope, that’s manslaughter,” right?
Defense Attorney: It’s actually pretty common for law enforcement to get this stuff wrong. This is complicated stuff. Remember that most of the time law enforcement aren’t lawyers, they didn’t go to law school or pass the bar. They get trained and taught by lawyers and, let’s face it, even lawyers get stuff wrong regularly. Most people don’t know but there is a prosecutor on call in most counties all night long to answer legal questions for police officers. In fact, if law enforcement didn’t ever make mistakes there’d be almost no need for defense attorneys. Also, the prosecutor, in this case, had time to review the video, read the police reports, study the law, and make a decision on what he feels he can prove to a jury. The police had to decide on the scene what to do without the benefit of hindsight, and they chose not to arrest.
I’m sure the reason Drejka is being charged with manslaughter rather than murder is because there’s a defense to murder if provoked by a hit or a push called the “heat of passion” wherein you have an uncontrollable state of mind. It doesn’t usually get you off, but often will reduce a charge from murder to manslaughter.
Prosecutor: I’m finding it very hard not to criticize law enforcement on this. They should have been able to see the video immediately at the scene, and we depend on them to understand the basics. It was patently the wrong call. “Within the bookends of stand your ground?” BZZZZ! Wrong! Stand your ground means that Drejka did not have to run away. It did not (and would not in Florida or any other state) relieve Drejka of the need to “reasonably believe that such force is necessary to prevent imminent death or great bodily harm to himself” before he shoots! Florida Code 776.012, 776.013. That reasonable belief that deadly force is needed to save is written into every self-defense law in the nation, including Stand Your Ground states. Any presumption of innocence in this case was clearly rebutted by the video depiction of the crime. Yeah, the cops got it wrong. Embarrassing.
Question 3. Speaking of Stand Your Ground, which states in part, “A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony…” does it apply to this case?
Defense Attorney: I think that you’re looking at the wrong part of the statute. What you’re looking at are the requirements to use deadly force or to threaten someone with deadly force. We often call those the requirements for self-defense. If you don’t meet those requirements and you use deadly force you could be charged with murder, manslaughter, attempted murder, or aggravated battery. If you don’t meet those requirements and you threaten someone with deadly force you could be charged with aggravated assault, or brandishing.
Generally, “stand your ground” literally means that you don’t have a duty to retreat or run if you’re in a place that you are legally and lawfully allowed to be in. In plain English, you don’t need to run if you aren’t breaking any laws or if the conflict isn’t your fault. It does not give you the right to use deadly force. The only the time a person can use deadly force is if that person, “reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony…”.
Imminent death would be death that is just about to happen, death on the verge of happening, death that is going to happen at any moment, etc.
Great bodily harm would be things like, loss of a limb or organ, brain damage, rape, etc.
The majority of states have Stand Your Ground laws. When you combine Stand Your Ground with the Self Defense laws it allows law-abiding citizens to protect themselves or others from people that would kill or seriously injure them and removes the requirement to run away from danger. It’s that simple.
Also, in this situation, I think you could make a case for McGlockton having the right to stand his ground and protect his girlfriend. The facts, as I understand them, are that Drejka was harassing McGlockton’s girlfriend for parking in a handicapped parking space. Drejka is not law enforcement and has no right to be enforcing the law. There’s a possibility, depending on the level of harassment, that McGlockton was legally defending his girlfriend when he pushed Drejka.
Prosecutor: Agreed. Stand Your Ground laws meant that Drejka did not have to run away. But that doesn’t mean he could blow this guy away without any reasonable fear for his life. Leftists like to treat this case like Stand Your Ground actually allows the use of deadly force here. That is misinformation, and when misinformed conservatives agree with it, they are playing into liberal hands.
Question 4. It appears from the video that McGlockton made no further attempt to physically harm or attack Drejka. Yet, Drejka drew his gun and fired anyhow. Supposing that’s the gist of it and there’s nothing else to contradict that analysis, does that rise to the level of imminent death or great bodily harm?
Defense Attorney: I certainly think that Drejka made a huge mistake. I didn’t see any actions from McGlockton that made me think Drejka was in imminent danger of death or bodily harm. McGlockton had no weapon and his body language wasn’t aggressive after the push. It looks to me like he wanted Drejka to leave his girlfriend alone. I don’t know what was said but usually it takes more than words to create imminent danger.
I’m a huge believer in self-defense, stand your ground, and the Second Amendment. I would struggle with being Drejka’s defense attorney in this case because I think he took a life that he wasn’t justified in taking.
Prosecutor: This video just flat-out convicts Drejka. It’s just so hard to justify shooting someone as they walk away. It just makes it impossible to effectively argue that Drejka had a reasonable belief of imminent death or great bodily harm.
Question 5. Lastly, what advice would you give to concealed carriers who find themselves in a situation where they notice someone breaking the law, assuming it’s not a forcible felony?
Defense Attorney: Most of the time my advice is to call 911, be a good witness, take notes, pictures, or video and try not to get involved. If it’s a forcible felony (rape, kidnap, murder, etc.) or someone is in imminent danger of serious injury or death, then you have a harder decision to make. Proceed with caution, be skeptical, and avoid shooting your gun unless it’s absolutely necessary. If it is necessary, make sure you hit what you are aiming at. Afterward, don’t talk to the police or anyone else until you’ve consulted an attorney.
Prosecutor: For misdemeanors, don’t try to be the police – call them instead. If someone is being attacked, just remember that you have to reasonably believe that they are in imminent danger of death or great bodily harm before you use deadly force. And remember you have to live with your decision long term.