Not "stand your ground" after all? Arrest, belated charges in controversial Florida shooting

Almost a month after a confrontation over a handicap parking spot turned deadly, prosecutors in Florida have arrested and charged the shooter with manslaughter. Michael Drejka managed to avoid either for almost four weeks after police initially concluded that the shooting took place within the bookends of self-defense and the state’s “stand your ground” law. However, it’s not at all clear that the latter applies — or the former, either:

Prosecutors charged Michael Drejka, the man accused of killing Markeis McGlockton in a shooting that has reignited a debate around Florida’s stand your ground law, with manslaughter Monday.

According to the Pinellas County Sheriff’s Office, Drejka was taken into custody Monday morning. He is being booked into the Pinellas County Jail, where he will be held in lieu of $100,000 bail.

Drejka, 47, has avoided arrest since he shot 28-year-old McGlockton on July 19 because of the controversial self-defense law that eliminated one’s duty to retreat before resorting to force.

Pinellas Sheriff Bob Gualtieri announced July 20 that his agency was precluded from arresting Drejka because evidence showed it was “within the bookends of stand your ground and within the bookends of force being justified,” which provides immunity from arrest, the sheriff said. He forwarded the case Aug. 1 to the Pinellas-Pasco State Attorney’s Office to make a final charging determination.

Our first clue that neither might apply is, of course, the fact that prosecutors filed manslaughter charges. The decision to charge manslaughter rather than second-degree murder is interesting too, though. The latter would require prosecutors to show that Drejka had a “depraved mind” without regard to the consequences to McGlockton’s life, and also that Drejka acted with enmity toward McGlockton. Since the two of them got into a confrontation in the parking lot and Drejka shot McGlockton while he was reportedly backing away, prosecutors at least theoretically have the elements for the greater charge.

On the other hand, Drejka isn’t getting that big of a break with the lower charge. For manslaughter, all prosecutors have to prove is that the killing was not accidental and does not fall into self-defense. Since he used a firearm in the homicide, manslaughter moves up to a first-degree felony, the same as second-degree murder. Either way, Drejka faces 30 years in prison, and the defense against manslaughter will rest entirely on Drejka’s self-defense claim.

While this has been covered as a “stand your ground” case, and reference made by law enforcement at the time to that law, it doesn’t appear to be relevant to this case. Florida’s Stand Your Ground law only eliminates the duty to retreat where possible before using deadly force in self-defense, as legal defense firm Hussein & Weber notes on its website. The statute on self-defense makes its limitations clear:

776.041 Use or threatened use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use or threatened use of force against himself or herself, unless:
(a) Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force.

The issue here isn’t whether Drejka had a duty to retreat. It’s whether (a) the perceived threat to his life from an unarmed man was reasonable after being pushed to the ground, (b) whether McGlockton was retreating when Drejka shot him, and/or (c) whether Drejka is the aggressor in this situation — none of which have to do with Stand Your Ground. According to McGlockton’s girlfriend and the surveillance video, (b) and (c) are in play:

McGlockton’s girlfriend, Britany Jacobs, who was seated in the couple’s car with two of their children, ages 3 years and 4 months, said Drejka confronted her for being parked in a handicapped-accessible space. McGlockton, 28, had gone into the store with their 5-year-old son. Jacobs said Drejka was cursing at her. Video shows McGlockton exited the store and shoved Drejka to the ground. Seconds later, Drejka pulled a handgun and shot McGlockton as he backed away. …

Drejka pulled up in his SUV seconds later, parking perpendicular to Jacobs, according to the woman’s account. She said Drejka got out, walked to the back of Jacobs’ car, looked at the license plate, and then went to the front, apparently looking for a handicapped sticker there. He appears to say something to Jacobs and points to two empty spaces nearby.

The video shows he then walked to Jacobs’ window. He is speaking from about a foot (0.3 meters) away and gesturing with his hands. A man entering the store about 15 feet (5 meters) away stops to look and a woman glances over.

McGlockton then exits the store, walks toward Drejka and — just as Jacobs gets out of the car — shoves Drejka with both hands. Drejka lands on his back and McGlockton takes a step toward him. Drejka sits up, pulls his gun from his right front pocket and points it at McGlockton, who takes three steps back, his arms at his side. Drejka fires, hitting McGlockton, who runs back into the store clutching his chest. Witnesses said he collapsed in front of his son, waiting inside.

Assuming all of this is accurate, Drejka started the incident with his aggressive behavior. That alone may well disqualify him from a self-defense claim under subsection (2) of the statute, and a shove to the ground is not going to qualify as an exception in subsection (a). Regardless of “stand your ground,” a self-defense claim only works when there is a rational and reasonable fear of death or great bodily harm, not a shoving match. The curiosity in this case isn’t that Drejka’s being charged. The curiosity is that it took almost four weeks for it to happen.

At any rate, this is not a Stand Your Ground case. Drejka has to first establish that he had a legitimate self-defense use of lethal force, which seems very unlikely with the facts that have been established so far.

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