I have observed some discussion online regarding the
latest high-profile shooting in Florida where the “Stand Your Ground” law is
invoked, and it seems to me that much of the discussion is poorly
informed. While I am not an expert in
all things relating to Florida’s “Stand Your Ground” law, I would like to share
my understanding of the situation for the benefit of others, and I hope they
will find it informative.
According to Pinellas County Sheriff Bob Gualtieri,
Florida’s “Stand Your Ground” law immunizes Mr. Drejka for the death of Mr.
McGlockton. Emotionally charged narratives
aside, I believe he is severely mistaken in his analysis. I do not believe that Florida’s “Stand Your
Ground” law excuses Mr. Drejka for shooting Mr. McGlockton, thereby causing
his death. In brief, the relevant facts
seem to be these: 1) Mr. McGlockton (28 years old) was in a gas station store
while his girlfriend was in the driver’s seat of their vehicle, parked illegally
in a handicap spot; 2) Mr. Drejka (47 years old) decided to confront the
girlfriend about being illegally parked in a handicap spot; 3) Mr. Drejka
engaged in conversation with Mr. McGlockton’s girlfriend while standing several
feet away from the driver side front door; 4) Mr. McGlockton emerged from the store
and observed the verbal confrontation with his girlfriend, whereupon, Mr.
McGlockton rushed towards the unsuspecting Mr. Drejka and shoved him to the
ground; 5) While Mr. Drejka was on the ground Mr. McGlockton continued to
approach him in a threatening manner, whereupon, Mr. Drejka drew his firearm
which he was legally carrying with a concealed carry permit; 6) Upon seeing Mr.
Drejka’s firearm, Mr. McGlockton took several steps back away from Mr. Drejka;
7) Despite Mr. McGlockton’s changed behavior when Mr. Drejka drew his firearm,
Mr. Drejka fired once, striking Mr. McGlockton in the chest; and 8) A short
time after being shot by Mr. Drejka, Mr. McGlockton died from the gunshot wound
to his chest. The events described in numbers
5 through 7 occurred over the course of approximately five seconds.
It would appear that Mr. McGlockton is not entirely
innocent in this series of events. Judging
by the video of the event, Mr. Drejka was not in a physical altercation with
Mr. McGlockton’s girlfriend, and Mr. Drejka was not making any threatening
motions towards Mr. McGlockton’s girlfriend. Mr. McGlockton emerged from the store,
observed a verbal exchange involving his girlfriend, and thereupon used
physical force upon an unsuspecting Mr. Drejka to shove him to the ground. At this point, it would appear that Mr.
McGlockton committed a battery against Mr. Drejka. “The offense of battery occurs when a person
. . . [a]ctually and intentionally touches or strikes another person against
the will of the other”. (Fla. Stat.
784.03) In the State of Florida, battery
is a misdemeanor of the first degree. (Fla.
Stat. 784.03) It would also appear that
by continuing to approach Mr. Drejka immediately after shoving him to the ground,
Mr. McGlockton further committed an assault against Mr. Drejka. “An ‘assault’ is an intentional, unlawful
threat by word or act to do violence to the person of another, coupled with an
apparent ability to do so, and doing some act which creates a well-founded fear
in such other person that such violence is imminent.” (Fla. Stat. 784.011) An assault is a misdemeanor of the second
degree. (Fla. Stat. 784.011)
At this point, and depending on further facts not
presently available to me, perhaps Mr. McGlockton may have been able to rely on
Florida’s “Stand Your Ground” law to justify him in shoving Mr. Drejka to the
ground. “A person is jusitified in using
or threatening to use force, except
deadly force, against another when and to the extent that the person
reasonably believes that such conduct is necessary to defend . . . another
against the other’s imminent use of unlawful force. A person who uses or threatens to use force
in accordance with this subsection does not have a duty to retreat before using
or threatening to use such force.” (Fla. Stat. 776.012) Perhaps there were some words or the tone of
the verbal altercation could have created a reasonable belief that Mr. Drejka
was about to use unlawful force against Mr. McGlockton’s girlfriend. However, this is pure speculation at this
point, and does not appear to be supported by the video recording of the event. Therefore, it is more likely that Mr.
McGlockton overreacted upon viewing the verbal altercation, and committed two misdemeanors
against Mr. Drejka, namely, battery and assault.
Mr. Drejka then took action to defend himself against
Mr. McGlockton. While some of Mr. Drejka’s
actions may have been justified, I do not think that the entirety of Mr. Drejka’s
response was justified. To begin with,
and to help properly understand the principles in play, if Mr. Drejka had brandished
his firearm during the verbal altercation before Mr. McGlockton entered the scene, Mr. Drejka would likely have
committed a crime. Drawing a firearm
during a verbal altercation would seem to be a threat to use that firearm to
end the dispute. At least, that’s how I personally
would interpret that action if I were in that situation. Such an action would seem to be an aggravated
assault. “An ‘aggravated assault’ is an
assault . . . [w]ith a deadly weapon without intent to kill”. (Fla. Stat. 784.021) An aggravated assault is a felony of the third
degree. (Fla. Stat. 784.021) However, Mr. Drejka drew his firearm after
having been forcibly shoved to the ground, not just during a verbal
altercation.
“A person is justified in . . . threatening to use
deadly force if he or she reasonably believes that . . . threatening to use
such force is necessary to prevent imminent death or great bodily harm to
himself or herself . . . . A person who .
. . threatens to use deadly force in accordance with this subsection does not
have a duty to retreat and has the right to stand his or her ground if [he or
she] is not engaged in a criminal activity and is in a place where he or she
has a right to be.” (Fla. Stat. 776.012) Mr. Drejka very likely had every right to be in
the gas station parking lot, and it does not appear that he was in the process
of committing any crimes. To justify Mr.
Drejka’s brandishing of a firearm, the question therefore becomes whether he reasonably
believed that doing so was necessary to prevent imminent death or great bodily
harm to himself, or to prevent the imminent commission of a forcible felony. I do not believe that in Mr. Drejka’s
position under these circumstances, it would be reasonable to believe that one’s
death was imminent. However, placing
myself in Mr. Drejka’s position (i.e., having just been shoved to the ground
and watching the assailant continue to approach in a threatening manner), I can
accept that a reasonable person would believe that great bodily harm was
imminent. The phrase “great bodily harm”
does not seem to have a precise legal definition, but it does seem to exclude slight,
trivial, minor or moderate harm, such as “mere bruises as are likely to be
inflicted in a simple assault and battery”.
(Heck v. State, 774 So. 2d 844 (Fla. 4th DCA 2000)) On the other hand, a broken bone in the face
or elsewhere, or bruising and disfigurement do amount to great bodily harm. (Heck v. State, 774 So. 2d 844 (Fla. 4th DCA
2000)) Accepting that a reasonable
person under these circumstances would believe that great bodily harm was
imminent, I can also accept that a reasonable person would believe that the
threat of deadly force would be necessary to prevent those things from
occurring. I think a reasonable person, having
just been shoved to the ground by a person 20 years their younger and who
continues to approach in a threatening manner, would believe that the mere
threat of non-deadly force would be ineffective in dissuading further acts of
violence. I also think a reasonable
person in these circumstances would believe that any attempts to actually use non-deadly
force in self-defense would be ineffective.
Therefore, I can accept that at this point, Mr. Drejka was justified in
brandishing his firearm in self-defense.
However, the question is whether Mr. Drejka was not
only justified in brandishing his firearm, but in actually firing it and thereby
killing Mr. McGlockton. “A person is
justified in using . . . deadly force if he or she reasonably believes that
using . . . such force is necessary to prevent imminent death or great bodily
harm to himself or herself . . . . A
person who uses . . . deadly force in accordance with this subsection does not
have a duty to retreat and has the right to stand his or her ground if [he or
she] is not engaged in a criminal activity and is in a place where he or she
has a right to be.” (Fla. Stat. 776.012) Again, Mr. Drejka apparently had every right
to be in the gas station parking lot, and was not committing a crime at this
point. Although brandishing a firearm to
end a dispute could in many cases be an aggravated assault, Mr. Drejka’s doing
so in this instance was not a crime because he was justified in threatening the
use of deadly force to prevent imminent great bodily harm and the possible
commission of aggravated battery against himself. Thus, the question becomes whether a reasonable
person in Mr. Drejka’s situation would believe that actually following through
with the threatened use of deadly force was also necessary. To justify the actual use of deadly force,
the appearance of danger must have been so real that a reasonably cautious and
prudent person under the same circumstances would have believed that the danger
could be avoided only by using deadly force.
(Florida Standard Jury Instructions in Criminal Cases) I grant that events happened fairly quickly;
however, having watched the surveillance video recording of the occurrence, it
is clear to me that once Mr. Drejka drew his firearm, Mr. McGlockton altered
course, taking several steps back, and even slightly turned away from Mr.
Drejka when Mr. Drejka then decided to shoot Mr. McGlockton. There is an unmistakable moment in which Mr.
McGlockton was disengaging. It is during
this unmistakable moment, that Mr. Drejka decided to discharge his firearm,
shooting Mr. McGlockton in the chest, and thereby killing him. I cannot accept that a reasonably prudent and
cautious person would believe that shooting someone else as that other person
is beginning to disengage and walk away, would be necessary to prevent any sort
of imminent threat. I cannot accept that
a reasonably prudent and cautious person would believe that there even
continued to be an imminent threat, let alone that actually shooting the other
person was necessary to prevent that now de-escalated threat, instead of just
continuing to threaten to use the firearm until the respective parties could
fully remove themselves from the situation.
At present, and based on the video recording of the actual occurrence
which shows that unmistakable change in the circumstances, I cannot accept that
Mr. Drejka was justified in killing Mr. McGlockton.
I therefore disagree with the decision not to prosecute
Michael Drejka in the death of Markeis McGlockton, and I believe that voters
should seriously consider removing Pinellas County Sheriff Bob Gualtieri for
his decision not to arrest or bring charges against Mr. Drejka. Mr. Gualtieri has a law degree and has practiced law before. He knows, or reasonably should know, that "Stand Your Ground" does not justify somebody in killing another person based purely on the subjective standard of fear. It therefore appears that Mr. Gualtieri has misled the public and has exercised the power entrusted to him to sustain the unjustified killing of Markeis McGlockton. Unless the Sheriff’s Office can present to
the public some very strong evidence justifying this decision, I do not accept
that the State is so lacking in evidence to overcome a preliminary assertion of
“Stand Your Ground” immunity that they should simply forego even the attempt to
present their evidence to a judge and jury.
It is precisely for reasons like this that government officials are held
accountable to voters through elections. I submit that Mr. Gualtieri's time to leave office has come.
