In Self Defense – Episode 66: Back to Basics: Drejka

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In Self Defense – Episode 66: Back to Basics: Drejka

Don West and Steve Moses join Shawn Vincent to take a second look at the Michael Drejka case, focusing on the fundamental legal elements of self-defense: reasonable belief, imminence, and severity. Then they look at how some of Drejka’s precursor decisions turned a close call on self-defense into a manslaughter conviction.

TRANSCRIPT:

Shawn Vincent:

Hey everybody. It’s Shawn Vincent. Thanks for listening in. Listen, here’s what I want to do today: recently Don West and I had a conversation. We recorded a podcast, in fact, about it called “Back To Basics.” We were talking about what the core elements of a self-defense claim are in the contexts of all the cases that we’ve been exploring over these last several years. And here’s what they are: reasonable belief, imminence, severity. Those are the key elements that have to exist to justify the use of force in a self-defense situation. A defender has to have a reasonable belief that an attacker has an imminent ability and intention to cause harm that’s severe enough to create great bodily injury or death. That’s reasonable belief, imminence, and severity.

Shawn Vincent:

We’ve also identified a handful of preamble conditions that support a self-defense claim. These things aren’t as critical as reasonable belief, imminence, and severity. But they are considerations that investigators and prosecutors and jurors are allowed to make that contribute to how they view the reasonableness of a defender’s actions. And the elements are: location, Does the defender have the right? Is he justified to be where he is? Lawfulness. The defender cannot be breaking any laws when he defends himself with deadly force. The idea of a first aggressor. The defender cannot have been the one that started the violent interaction with the perceived aggressor. And finally, duty to retreat, which is a legal standard in some states. But I’m going to argue over the course of these podcasts that it is, whether or not the law requires it, something that prosecutors may perhaps and certainly juries hold against defenders when they pass up obvious opportunities to de-escalate or retreat from a violent encounter before resorting to deadly force.

Shawn Vincent:

So again, reasonable belief, imminence, severity are key pillars. Location, lawfulness, first aggressor, and duty to retreat are preambles. We are going to go back and explore the dozen plus cases that are in our self-defense cannon. If you’ve been with us a long time, you may be familiar with these cases, and this time you’re going to get the insight of our friend Steve Moses. He’s an experienced firearms instructor and a CCW Safe contributor. And for those who are new to listening to our podcast and reading the articles on CCWsafe.com, you’ll get a more firsthand experience with the cases that are touchstones for us, cases that we reference frequently in our podcasts as we explore new cases as they hit the headlines. And I’ve reexamined again and again these cases, and personally, every time I take a second pass at them, every time I have another conversation with Don West about these cases, there are still things to learn. So I think you’ll get a lot out of this series “Back To Basics” where we explore these cases from these seven elements.

Shawn Vincent:

Here’s my conversation with Don West and Steve Moses. We are going to re-explore the Michael Drejka case.

Shawn Vincent:

And a quick reminder that this podcast does not constitute legal advice. Instead, it is an exploration of the legal consequences associated with real life self-defense scenarios. They’re designed to make you a more knowledgeable, well-informed conceal carrier.

Shawn Vincent:

Here’s my conversation.

Shawn Vincent:

Steve, I want to start this conversation out, and we’re going to talk about the Michael Drejka case, and that’s one you’re pretty familiar with, right? You seen the security video.

Steve Moses:

That’s correct. I actually reviewed it again this morning.

Shawn Vincent:

Yeah, yeah. So tell me what you see in that video. Michael Drejka’s a man — he’s a concealed carrier. He lives in Florida, in Pinellas County. Florida’s a stand your ground state. And he has a particular pet peeve about people parking in handicap spots. Britany Jacobs comes with her kids and her partner, Markeis McGlockton. She parks in the handicap spot. Markeis McGlockton goes in with his five year old. Michael Drejka gets into a verbal argument with her about it, and that’s when we pick up on the video camera. Tell us what we see there.

Steve Moses:

Well, what I see is I see Drejka is having the interaction. He’s talking. He’s arguing. He appears to be about four feet from the door of the car in which the young lady is seated. She opens the door and starts to step out just about the time that Markeis comes out. And he walks over there, doesn’t seem very hurried. Walks over there, and then he shoves, pretty brutally, he shoves Drejka to the ground. Drejka kind of rolls on his back, comes back up, and draws a gun. And then I actually see Markeis take three, possibly four steps back before Drejka fires the shot at which time the victim clutches his chest and runs back into the convenience store.

Steve Moses:

So the thing that I saw was I saw Drejka, I felt like under the circumstances responded initially fairly well. Of course, he shouldn’t have put himself into that position. I think we would all agree upon that. But once he had been shoved, he perceived himself to be perhaps in danger of being injured seriously or killed. He drew his handgun. He brought it out, but at that particular time, Markeis took a step or two or three, it actually looked like four steps back, and was moving back before the shot was fired. So in my opinion, that shot was not warranted, and a lot of damage was done with that. Not only to the victim, the victim’s family, but Drejka and actually Drejka’s family also. So just a real tragedy.

Shawn Vincent:

Don, is there anything else about that video that stood out to you in your assessment of it?

Don West:

Well, I was trying to look at that video from a legal perspective because Drejka has been pretty universally condemned for initiating the contact with Britany Jacobs. Basically sticking his nose into stuff that he had been doing for a while, complaining about people parking in a handicap spot that didn’t have the handicap sticker. So they weren’t technically illegally, and he’s taking it upon himself a couple of times, and this time in particular to confront the person and remind them, I guess, or to give them a hard time that they were parking there illegally. He claimed, I guess, he has some personal stake in this because of a relative that’s disabled and such.

Don West:

But I think that put him in a bad light right from the beginning, even though I don’t see any part of that that’s illegal per se. He wasn’t breaking any law. You have a first amendment right to complain about virtually anything to anybody at any time. You don’t have the right to put your hands on somebody, and he didn’t. He was just running his mouth, and I noticed that Ms. Jacobs got out of the car to stand there face to face. So it would seem that she wasn’t particularly afraid of him, didn’t feel that he was going to physically assault or batter her in some way. But it was escalating. It became more agitated. It was verbally assaultive in that there was this discussion that was escalating to the point that apparently somebody in the parking lot told Markeis McGlockton who was in the store that something was happening.

Don West:

Of course, his reaction was illegal in my mind. He came down that sidewalk where Drejka and Jacobs were face to face, and his initial reaction was physical. In my view, he was not defending her. He had no right to physically batter Drejka in support of her position in this argument. So he committed a crime when he shoved Drejka to the ground, and he did it forcefully, as Steve pointed out. Drejka was knocked down on his back, on his butt, and was able to sit up by the time he drew and fired his gun. But he never did get up off the ground.

Don West:

So in some ways, in my view, that Drejka was the victim of the first crime that was committed, but by virtue of him inserting himself into that situation, he created a really bad context for his later conduct to be evaluated, especially when there was that moment that Steve talked about when it looked like maybe he had an opportunity to draw the gun, but not to fire it. When you put the bigger picture together, I think Drejka had a couple of strikes against him before this thing even started.

Shawn Vincent:

So that makes it a really interesting case to begin our conversation of these core elements and then these foundational preamble elements where I think there’s a case to be made that there’s some controversy and some close call here on these core elements. But Drejka undermines the sympathy that he might get or the reasonable doubt that he might ask for because of his behavior with these preamble elements. So what I’d like to do in this structured analysis here is run through these core elements first, kind of get our bearings on that, and then go look and see how those were undermined by his actions leading up to it.

Shawn Vincent:

So for the first one, let’s look at reasonable belief, and I’m going to put this in the context of Michael Drejka’s just been pushed to the ground, pretty violent by a shove. He’s prone. Markeis McGlockton continues to… He takes a step towards him and kind of postures in a way that’s aggressive, and this is when Drejka decides that this guy can really hurt me. He’s already indicated that he’s willing to, but also not… He’s unarmed as it turns out. Steve, put me inside of Drejka’s head here if you can, or your impression of him at this point. Does he have a reasonable belief that-

Steve Moses:

I believe so.

Shawn Vincent:

Yeah, go ahead.

Steve Moses:

I believe so. He’s been shoved to the ground. The man is physically larger than he is. The man is extending his arms out, making himself big, just typical primate posture that we males do. And he has, like you said, I think the term you used maybe he was “lording” over him. And I definitely got that impression. If I were Drejka, I would have indeed been in fear that I might get maimed. I might get killed here. This man is physically stronger than me. He’s only a feet from me, and I’m in a very compromised position. And I’m not mobile at all. So I sympathize with the fact that he felt like, “Okay. I’m in danger.” And he drew his gun.

Steve Moses:

Okay so now we’ve got ability, we have opportunity. At that point, I’m going to say retreat’s not really an option for him because he’s flat on the ground, and this other person is mobile and standing over him. But this is where it breaks down because the intent in my opinion starts to melt because it was very conspicuous or obvious to me that McGlockton started backing off. And it wasn’t just like a small subtle step. It was actually three, maybe four steps. Matter of fact, it actually looked to me that he was starting to turn or blade his body so it was not square to Drejka anymore when the shot was fired. And so in my opinion-

Shawn Vincent:

Now you’re speaking, Steve, to imminence, right? As soon as Drejka pulled the gun out, McGlockton responds to it, and his posture changed. And I think we can describe those steps backwards as a retreat, right?

Steve Moses:

That’s correct. That’s correct.

Shawn Vincent:

So now all of a sudden, the imminence has vanished, and if we’re-

Steve Moses:

I would hate to say that.

Shawn Vincent:

Yeah, okay.

Steve Moses:

I would say the imminence has been diminished. I believe that Drejka made reference at some point to the Tueller Drill, and that an average person can cover seven yards, 21 feet in 1.5 seconds. So in terms of I would say opportunity or imminence, that was still in my opinion, that was still possible. He was still relatively close, and he could’ve moved very quickly in order to close on Drejka and start landing blows on him. But the intent, in my opinion, that’s what was being diminished. He’s backing away-

Shawn Vincent:

So the retreat telegraphed that he’s no longer-

Steve Moses:

That’s right.

Shawn Vincent:

… pressing an attack.

Steve Moses:

To me, all three elements have to be in place. If I stand next to a police officer, I mean, really that person has the opportunity, and they have the ability to of course do serious damage to me. But they absolutely have zero intent. So without that third element, I just think any claims he had to legitimate self-defense, I think they vanished.

Shawn Vincent:

Don, what’s your take on that step back and how that plays into imminence and his reasonable belief?

Don West:

Well, let’s go back to the basics as well, and that is it’s a fundamental premise of self-defense that you can only use as much force to defend yourself as is being used in the attack. That’s this notion of proportionality. So Drejka was violently shoved to the ground, and at that point, he clearly had been attacked. And I think he had a reasonable belief at that point that the attack would continue. So I think he clearly had the right to use some force in anticipation of that attack continuing because I think McGlockton even took a step toward him at that very beginning.

Don West:

However, this thing turned on a dime, and that is because when Drejka drew the gun and McGlockton saw it, McGlockton’s response was to retreat. So at that point, I think that Drejka had already used the force necessary to neutralize the threat. Interestingly, in Florida, drawing and even pointing a gun at someone in self-defense is considered the use of non-deadly force. So at that point I think under those circumstances, Drejka was legally entitled, especially being on the ground and being vulnerable, knowing that an attack seemed to be imminent, further attack seemed to be imminent at that point, to draw that gun.

Don West:

I think where it went sideways was McGlockton reacted in the way most people would react seeing a gun, stopping the attack, and even beginning to retreat, at which point Drejka did not have the right to use additional force, certainly not deadly force. But as we know from looking at the video, that whole thing happened in an instant. So we’ve talked before, and I think maybe even now part of Drejka’s thinking may have been clouded in that he believed and maybe planned on firing the gun before he actually pulled it and aimed it. So by the time he did all of those things, the circumstances had changed. And while he may have been justified in using deadly force had McGlockton continued to come toward him, to stomp him, to kick him in the head, to clearly use sufficient force to cause serious bodily harm or death, that had stopped at that point if you break it down into these millisecond assessments.

Don West:

I think when someone looks at it after the fact, that’s where Drejka I think is considered to have made some lapses in judgment. And Steve, maybe that’s a tactical and a training issue as well. Maybe it’s just one of those just horrible, horrible things that happens in the dynamics of an ongoing self-defense and attack scenario.

Steve Moses:

That’s a good point. It’s hard to say. In many instances under stress, actually things seem to slow down. So it’s very possible also that he recognized it, that he had that opportunity. He made the decision to shoot and he decided to just go ahead shoot. There was just such a noticeable pause there that causes me some concern. By the same token, if he believed that the only reason to draw a gun is for the purpose of shooting another in self-defense while that gun was drawn, that person is shoved into the ground, and so maybe indeed he believed it was time to do it. I just couldn’t say for sure, Don.

Shawn Vincent:

Steve, Don brought up the idea that there is some disproportionality of force here or that the proportionality of force is an important consideration in self-defense. The term that we’re using for that in our conversation is “severity” of the attack. As a jiu-jitsu student and instructor, and a firearms instructor, talk about that for me just a little bit because I think you can make a strong case that if you’re prone on the ground and somebody means, they’re standing over you. They already shoved you, and they can now kick you in the ribs or in the face. They may not be armed, but there’s a case to be made that the bodily injury that you can sustain now is very severe, enough to justify-

Steve Moses:

That is true. That’s absolutely correct, and actually I’m less concerned myself about being really severely hurt by being kicked in the body, much more so that the other person just goes all first grade schoolyard bully where they just mount on top of you, get above your hips, pin you to the ground, and then just beat you unconscious.

Shawn Vincent:

The old ground and pound.

Steve Moses:

Yeah, the ground and pound, which is very common and very dangerous. The reason for that is that if you’re standing and someone strikes you, unless they hit you just perfect, you’ve got a little bit of give. You can move. But once you are flat on the ground, there’s no place for your head to go. The person is now striking downward, and they’re able to generate significantly more force. And it’s very, very easy to sustain a concussion or worse from a ground and pound. So to me, that’s a very, very dangerous thing. He may have had some concerns about that.

Steve Moses:

One of the issues, Don had mentioned training, is that so many people’s training is basically just self-training. That is maybe they took a class where they got a carry permit, and they go to the range and they practice. They read material. They visualize what they should do. But they’ve never trained under a really qualified defensive firearms instructor whose goal is not to make you survive a gunfight, it’s to get you in a position where you will not be in a gunfight, and you have options other than fighting with your gun. And then if you do have to fight, do so in a lawful manner. And I suspect that in that regard his training was very lacking. I don’t know what percentage of concealed carriers train overall or have ever even taken a really good defensive firearms class. But I think that number is well below 10%.

Shawn Vincent:

So to wrap up this part of the conversation, let me just give an assessment here based on what I’ve heard you guys say. When it comes to severity, the great bodily harm portion of this, we’re giving Drejka a pretty good marks here, considering McGlockton wasn’t armed, right? Considering the fact that Drejka was on the ground prone, and this guy was so much bigger than him and in a better position. That severity could’ve been high. He’s good on that element. And the reasonable belief that McGlockton intended him harm is also on Drejka’s side here because he had been just violently pushed to the ground. So I think objectively he passes on this pillar as well.

Shawn Vincent:

Where he gets into trouble, listening to you guys talk, is that in fact when he drew his gun and pointed it, McGlockton broke off the attack by all signs, certainly based on the video that we saw. He steps, you counted, Steve, up to four steps backwards, and had changed his posture to a less aggressive posture. That imminence factor, even though it happened quickly, disappeared, and this is the main element where he fails.

Shawn Vincent:

Does that jive?

Steve Moses:

I agree.

Don West:

Yeah. I do. I do as well. Doesn’t it seem to you guys that McGlockton’s reaction when he took steps backward appears to have been upon seeing the gun. So it wasn’t that he decided against attacking Drejka, as much as once Drejka displayed the weapon, McGlockton saw it and realized this thing has just changed dramatically. And then he broke it off. And as he was essentially disengaging, Drejka continued with the use of force under circumstances that when you look at that video appears as though he had an opportunity not to shoot, and I think that was his undoing — that he had an opportunity not to shoot at the moment that McGlockton was backing off. But he didn’t stop. He continued.

Shawn Vincent:

Yeah, and to transition, I think depending upon these preamble elements, a jury or a prosecutor could have gone either way with their assessment because I think we’ve got such a slim amount of time where the circumstances change so quickly that I think there’s a certain amount of sympathy we could have for a defender put in that position where they seem like they are completely justified, and then all of a sudden inside of one second, the circumstance changes. And all of a sudden they’re not, and are we willing to give that defender the benefit of the doubt? And I think a lot of that depends upon was he justified in being where he was at the location? Were his acts lawful, or if not unlawful, then were they sort of socially acceptable actions? The first aggressor idea, he didn’t start the violence, but did he pick the fight that led to it? And then any opportunity to retreat.

Shawn Vincent:

So let’s just look real quick here, Don. He’s certainly legally allowed to be in a parking lot at this convenience store. I think it’s interesting, even though he was upset about the woman “illegally” parking in the disabled parking spot, he himself had in fact put his car in the parking lot not in a parking spot. He was illegally parked. And by all accounts, both parties had equal justification to be at a convenience store. Is that fair?

Don West:

Yeah, and I’d like to point this out. I don’t know if anyone else has talked about it much. is that Britany Jacobs was in a handicap parking spot. I think there was another one there, but she stayed in the car. She was readily able to move the car if somebody else needed to use that spot. It wasn’t as if she parked it there, got out of it, went away, and basically said, “You guys, the hell with it. I’m just going to stay here being defiant.” It got defiant because he approached her and became confrontational. But in my view, even the violation itself, even if it was real, was pretty technical because she clearly wasn’t stopping someone else who had a handicap parking sticker from using that spot. There was no one there that wanted it. So that doesn’t help Drejka either when he picks the fight in this context.

Shawn Vincent:

And then he wasn’t breaking any laws. I mean, his parking violation aside from parking his car in a non-designated spot in this parking lot, that’s not going to undermine significantly his self-defense claim.

Don West:

That’s true. And so I’m with you on all of that. He hasn’t broken any laws specifically, but he’s done those sorts of things that focus the jury’s attention on him in evaluating whether he should be given the benefit of the doubt, and that extends beyond just his conduct there at the scene. I watched a lot of the trial, and there was evidence introduced about a prior encounter with another person who had parked in that spot that became agitated and yelling, and even Drejka threatened some violence at that point. And that evidence was offered to the jury. So they had not only his behavior at the moment involving Britany Jacobs and Markeis McGlockton, but they also had a prior incident.

Don West:

And we’ve talked about this on and on, and we should continue to talk about it because I believe that if someone who carries a gun demonstrates anything to a jury or ultimately frankly a police officer or as a prosecutor’s evaluating their behavior that suggests that they are the slightest bit irresponsible or a hothead of some sort, someone that might be looking for a confrontation, their chances of being successful in a self-defense claim is damaged almost irreparably. And I think Drejka had all of that going against him at the beginning of this thing, even though when you isolate the actual conduct, it’s a pretty close call. But he just piled it on and piled it on with his other behavior.

Shawn Vincent:

And Steve, I think it’s a clear argument that physically, Drejka wasn’t the first aggressor. It was Markeis McGlockton who had pushed him to the ground, but talk to me about the wisdom of concealed carriers picking a verbal argument over, let’s say, minor non-moving vehicle infractions.

Steve Moses:

Well, I’m a big advocate of just not picking an argument with anyone. And one of the really bad things that concealed carriers are prone to do is once they feel that they now possess a concealed handgun, that there’s things now that they can do more safely than they could before when they were unarmed. I think there’s an old saying: “Never go someplace armed that you wouldn’t go unarmed.” I’ve seen several instances where other concealed carriers actually put a gun on because they knew they needed to confront their neighbor over something. They were concerned it was dangerous. So it was just absolutely there’s just no merit in doing that. And again, you have no control over what might happen, even if you go up there unarmed in order to have a disagreement with someone in which you don’t really need to be involved.

Steve Moses:

So again, I’m just always an advocate of discretion over confronting someone, especially over something just as minor as that.

Shawn Vincent:

Sure, and Don, legally he’s not the first aggressor here, but I don’t think the jury ever forgives him for picking this argument. Do you agree with that?

Don West:

I do. I agree with it, and in watching the trial, the prosecutor took every opportunity they could to remind the jury who in their view started this thing and for no good reason. I guess that becomes part of it too. What is a good reason? Why would you initiate a confrontation? Well, he had the right to do it, as we’ve talked about, but carrying a gun, putting himself in this situation that might very well escalate, not just with Ms. Jacobs but with tragic consequences of Markeis McGlockton. Just put him I think in a negative light right from the beginning, and that was something that the facts were not so clear that they gave the jury a clear choice in his favor, and the rest of it was just pretty muddy. And he was the guy that was muddied up.

Shawn Vincent:

Here’s a final element here: duty to retreat, and I don’t think that plays really into this case. But interesting because Florida’s very famously the first stand your ground state where the duty to retreat is specifically waived by the statue. Anywhere you have a legal right to be and you’re not breaking a law, you can meet force with force. And this is one of those quirks about the misunderstandings of stand your ground. I’m going to suggest, and you guys let me know if I’m wrong here. And Steve, I think you actually even made a statement that leans this way. That once Drejka’s on the ground and prone and McGlockton’s right there above him, retreat’s not really an option for Drejka at that point. Do you agree with that, Steve?

Steve Moses:

I don’t believe so. And some people could argue that, “Okay. Well, maybe he could’ve gone ahead and gotten up, and perhaps he would not have been attacked.” But at that particular instance having been shoved to the ground that violently and considering the youth and the size of that particular person, I would’ve felt like I’m pretty much pinned here. So I really need to stand my ground because I must, not because I just can.

Shawn Vincent:

Don, from the legal perspective, even in a duty to retreat state, I think this doesn’t become a real big issue in this legal defense, is it?

Don West:

No, agreed. Agreed. I think once Drejka is on the ground, he has no place he can go. And the idea of duty to retreat is built into that is that you can safely retreat, that you can get away without increasing the risk to yourself. So no, I think Drejka reacted legally to the extent that he was legally allowed to react. It sounds kind of…

Shawn Vincent:

A safe lawyer’s answer there, right?

Don West:

There you go. There you go.

Shawn Vincent:

And to wrap this all up, if we’re looking at location, I think we’re neutral on this point, not really in Drejka’s favor or against him on this. Lawfulness, he’s not breaking the law. But Don, you referenced he had some prior bad acts. He had an interaction with somebody that almost turned violent over that same handicap spot in the past. He had had a couple of brandishing incidents that were in his record at least, whether the jury saw that or not. He’s not breaking the laws, not technically violating here, but it leans against him.

Shawn Vincent:

The idea of first aggressor, not legally the first aggressor. He didn’t start the violence, but still he instigated the confrontation and that’s held against him in… We believe in the jurors’ assessment of the reasonableness of his actions. And duty to retreat, didn’t have that opportunity, so that’s on the side there. But if you take all of that and taking it into context of his reasonable belief that McGlockton meant him harm and the severity of the harm that McGlockton could’ve done, the controversy here is on the imminence. Did Markeis McGlockton break off? Did Drejka have enough time to respond to it? And if that’s a toss up, those preamble elements weigh things against him. I think that’s what made this case a close call.

Don West:

I think that’s a terrific assessment of it. Weaving the legal issues along with some of the subjective stuff, the stuff that can turn a jury one way or another, and of course the baggage that Drejka brought into the case with him, with the prior stuff that he had been involved in. There may not have been anything else he could’ve done once he was on the ground and was pulling his gun because of his mindset and the decisions that had already been made. Whether it was a result of training or that he had concluded at the point that he was going for his gun, perceiving McGlockton coming toward him, that that was his only choice. And that would be a bit of tragedy, wouldn’t it, because he missed the cues that McGlockton clearly gave when you look at the video that he was backing off. And there were enough cues there that the jury concluded that he didn’t have to shoot him.

Don West:

And as a result, he got convicted of a very serious crime and is going to be spending a good bit, if not the rest of his life in prison all because I think it’s fair, although it’s harsh, he got the ball rolling. He got the ball rolling. He started it in a sense, and he injected himself in this situation knowing that he was carrying a gun. And it just went so tragically wrong that he was the one, the guy that wound up using the gun when Steve, I suppose you would endorse the idea knowing that he had a gun, knowing where these things could go, since you can’t control the way the other person responds, even if you’re doing something completely legal. That you have an obligation, you have an affirmative obligation not to get the ball rolling in situations like this.

Steve Moses:

Absolutely. I think actually it even raises the bar a little bit higher for a person. When you strap that gun on, I think you have to be more prudent and more diligent than ever in terms of avoiding a possible confrontation with others.

Shawn Vincent:

All right, guys. That’s the podcast. Thanks again for listening. Imminence, it can come and go in a second. Our new lesson from the Drejka case. Until next time everybody, be smart, stay safe. Take care.