Case Of The Week with Andrew Branca-July 25th, 2018

 

Understanding Why There Was No Arrest in The Florida Handicap Space Shooting

This case of the week is about a Florida shooting last week often called “the handicap parking spot shooting.” In summary, 47-year-old white male Michael Drejka (the “shooter”) shot and killed 28-year-old black male Markeis McGlockton (the “victim”) after McGlockton battered Drejka to the ground upon observing Drejka scolding McGlockton’s girlfriend for having wrongly parked in a handicapped parking spot. You should watch the surveillance video of the exchange adjacent to this post.  

On Friday, July 20, headlines were made when the local Sheriff announced he would not be arresting the shooter. He cited Florida’s self-defense immunity law (which you can read here: lawofselfdefense.com/776032) as the basis for his decision

Arrest Prohibited Absent Probable Cause 

That statute, relentlessly and incorrectly referred to as Florida’s Stand-Your-Ground Law (SYG is actually an entirely distinct legal doctrine and even a different statute) has several provisions.  The relevant part of it for this discussion requires that law enforcement establish probable cause that the perpetrator’s actions were unlawful before they can arrest that person. In addition, the defendant can sue civilly to recover legal expenses and other costs if self-defense immunity is later granted.

Was Shooter’s Force Likely to Be Found Unlawful?

What the Sheriff had to evaluate, then, was whether the available evidence supported a narrative of lawful self-defense, in which case an arrest was impermissible, or whether the available evidence didn’t, in which case the use-of-force was unlawful and an arrest was appropriate.

Five Elements of a Claim of Self-Defense

As I’ve said before, a self-defense claim consists of up to five elements, and all of the required elements must be present in order for the claim of self-defense to be valid.  Those elements are: innocence, imminence, proportionality, avoidance, and reasonableness.  That’s it, folks, just those five—and sometimes not even all of those, if one or more of the elements has been legally waived

Prosecution Must Disprove Self-Defense Beyond a Reasonable Doubt

In addition, the burden is on the prosecution to disprove self-defense, meaning disproving just one of the required elements beyond a reasonable doubt (except in Ohio).  

In order to understand, then, whether this shooting would be likely to be found to be lawful, we need merely evaluate it on those five elements, and determine whether any required element appears vulnerable to disproof beyond a reasonable doubt.  (To better understand these 5 rules I recommend you check out my book on it at lawofselfdefense.com/book.)  

Facts of the Case

The victim and his girlfriend drove to a convenience store.  She parked in a handicap parking spot, without license to do so, and stayed in the car while the victim entered the store.  The shooter, seeing she was in a handicap spot without a placard, loudly and profanely told her to move her car.  The victim, once aware of the disturbance, exited the store, closed on the man haranguing his girlfriend, viciously shoved him to the ground, then hovered over him menacingly.  

The shooter drew his properly licensed-to-conceal handgun. The victim shuffled a step or two back.  About 1.5 seconds after aligning the muzzle on the victim the shooter fired a single round into the victim’s chest.  The victim clutched his chest, turned, and jogged back into the convenience store where he would die. About 30 seconds later the shooter struggled back to his feet, put his gun in his vehicle, and waited for police.

So, let’s evaluate the five elements of a self-defense claim.

Innocence: Arguably Points to Self-Defense

The element of innocence asks, “who was the initial aggressor?”, that is, who is the first person to threaten or use force against another? In this case the initial aggressor is the victim, when he violently shoved the shooter to the ground.  Although the shooter may have been acting imprudently and obnoxiously in scolding the girlfriend, non-threatening words do not constitute an act of physical aggression.  So, the innocence element is arguably in favor of the shooter.

It has been asked whether it can’t be argued that the shooter’s scolding of the girlfriend provoked the attack by the victim, thus making the shooter the provoker of this event, and losing the shooter innocence and therefore self-defense.  

The shooter, however, had no knowledge of the victim’s presence until the victim attacked him.  It could not, then, have been foreseeable that the shooter’s conduct would result in the victim’s attack upon him.  (In contrast, provocation may have been an issue to consider had the girlfriend, the target of the scolding, rather than the victim, attacked the shooter.)  

The shooter could not have provoked the victim’s attack in any meaningful meaning of “provoke,” however, because he never interacted with the victim prior to the victim attacking him.  

Imminence: Arguably Points to Self-Defense

Imminence asks whether the victim had the ability to cause harm, the opportunity to do so, and conducted himself in a manner from which a reasonable person would infer that he intended to cause harm.  Here the boyfriend, standing looming over the shooter, clearly had the ability and opportunity to cause harm, and his conduct in violently throwing the shooter to the ground constituted jeopardy.  Even after seeing the gun, although the victim shuffled back a step or two, he did not make a clear effort to retreat from the conflict, but remained facing the shooter.  So, the defendant’s case arguably meets the requirements of imminence.

It has been asked whether the victim’s step or two back, upon seeing the gun, indicated that he was no longer an imminent threat to the shooter.  The difficulty with this view is that the victim’s couple of steps back, where he then remained within a few feet of the shooter in a position from which he could renew his attack, is not an unequivocal retreat from the confrontation.  Another witness in the video, wearing a blue shirt, makes a much more substantive movement away from the area near the bottom of the screen.  Given the victim’s relatively modest stepping back, while remaining positioned to continue his assault, it’s not hard to believe that the shooter would have reasonably inferred that renewing the attack was being contemplated by the victim.

It has also been asked whether the victim declining to flee was not a reasonable decision on his part, given that his girlfriend and children were right there in the vehicle beside him.  I would certainly concur that this is so, but for the purposes of determining whether the shooter’s of use-of-force was justified, the fact that the victim might have been acting in a subjectively reasonable way simply doesn’t matter.  

The only state of mind that matters is the reasonable perception of the shooter, who in any case did not know that of the relationship between the victim and the woman he’d been scolding and the children with her.  

It is irrelevant whether the victim’s decision to remain within striking distance of the shooter was subjectively reasonable for reasons unknowable to the shooter.  What matters is whether the victim’s decision to remain within striking distance of the shooter could be reasonably perceived by the shooter as an imminent threat.

Proportionality: Arguably Points to Self-Defense

In terms of proportionality, what’s relevant is whether the shooter faced a deadly force threat, because that’s what would be required to justify the shooter’s use of a deadly firearm.  It’s important to keep in mind that a deadly force threat includes not merely force capable of causing death, but also force capable of causing serious bodily injury.  

Importantly, the violent throw to the ground alone isn’t enough —by the time the shooter has his gun out, that throw to the ground was in the past, and he can’t justify the use of deadly force because of some past use of force against him.  A pretty good indication that you’re about to have force inflicted upon you, however, is that someone just did so a moment ago, and is hovering threateningly with the capability to inflict even more force.  It’s that additional aggressive force against which the shooter would be justified in defending himself.  

Was it reasonable for the defender to infer from the shove that he was in imminent danger of being kicked or stomped while on the ground, acts that can clearly cause serious bodily injury?  I suppose reasonable people can disagree, but keep in mind that the legal standard will be that the prosecution must disprove the shooter’s fear beyond a reasonable doubt. On that basis, and given the victim’s vicious initial attack, I expect it would not be hard for a jury to conclude that in the 1.5 seconds or so the shooter had to make his decision, it was not unreasonable for him to conclude he was in imminent danger of serious bodily harm.   So, proportionality is arguably in favor of the defendant.

Avoidance: Arguably Points to Self-Defense

In terms of avoidance, Florida is a Stand-Your-Ground state, so the shooter had no legal duty to retreat.  But that’s irrelevant, because a duty to retreat only ever exists when it is possible to retreat with complete safety.  One is not required to increase their jeopardy in order to get away.  Having been thrown violently to the ground, with his attacker hovering menacingly over him, there was no reasonable means of safe retreat.  If there was no means of safe retreat, there is no duty to retreat, and Stand-Your-Ground can play no role in relieving a duty that does not exist.  So, avoidance is not a relevant element to the case.

Reasonableness: Arguably Points to Self-Defense

In terms of reasonableness, this can be thought of as an umbrella element that hovers over the prior four elements.  In this case there’s no dispute who was the initial aggressor, and there was no realistic possibility of safe retreat, so reasonableness is checked off for those two elements.  As for the remaining elements of imminence and proportionality, was it reasonable for the shooter to perceive an imminent threat of serious bodily injury at the moment he presented his gun and fired the single shot?  On these facts it would seem possible, but not likely, that a jury could be unanimously convinced, beyond a reasonable doubt, that the shooter did not have a reasonable fear of imminent serious bodily harm.  So reasonableness arguably favors the defense.

Bottom-Line: Unlikely to Disprove Self-Defense Beyond a Reasonable Doubt

I don’t know if the Sheriff took this step-by-step approach to analyzing the use-of-force in this case, or if he arrived at the same conclusion by some other means, but in any case, that’s the bottom line:  on these facts it is possible, but arguably unlikely, that a prosecutor could convince a unanimous jury that self-defense had been disproven beyond a reasonable doubt 

–Andrew

Attorney Andrew F. Branca

Law of Self Defense LLC

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