After Michael Drejka lethally shot Markeis McGlockton outside a convenience store in Clearwater, Florida, last year, the case was widely portrayed as an example of how that state’s “Stand Your Ground” self-defense law supposedly lets people get away with murder. Yet Drejka was charged with manslaughter a month after the incident, convicted by a jury a year later, and sentenced to 20 years in prison yesterday. The New York Times, which has a history of erroneous reporting about Florida’s law, nevertheless seized upon the occasion to misrepresent it once again.
“The law says that people who believe they are in grave danger do not have to retreat from a confrontation, even if they can safely do so, and instead have the right to use deadly force,” the Times says. “Stand Your Ground has been widely criticized for exacerbating conflicts. In a letter to the judge, Ross Kaplan, a retired major in the United States Army, raised concerns with the law. ‘The aggressor can pick a fight and if they begin losing, they can use deadly force,’ he wrote.”
Contrary to the implication, none of that has anything to do with this case. Drejka’s fatal encounter with McGlockton began when Drejka upbraided McGlockton’s pregnant girlfriend, Britany Jacobs, for parking in a spot reserved for disabled customers. When McGlockton was alerted to the argument, security camera footage shows, he exited the convenience store and shoved Drejka, who fell on the pavement. Drejka, still sitting on the ground, drew a pistol, at which point McGlockton started to back away. Drejka shot him in the chest anyway, after which McGlockton staggered back into the store and collapsed in front of his 5-year-old son. McGlockton was taken to a hospital, where he was pronounced dead.
The whole incident could have been avoided if Drejka had not taken it upon himself to enforce parking restrictions—something he had a habit of doing, even though the store’s owner had asked him to cut it out. But it was McGlockton, not Drejka, who initiated a physical altercation. Given the circumstances, it may well have been reasonable for Drejka, who had a concealed carry permit, to draw his gun in self-defense against a man who had assaulted him and was still looming over him. The crucial issue was whether he was justified in firing the weapon when brandishing it seemed sufficient to deter McGlockton from continuing his attack.
The question, in other words, was whether Drejka reasonably believed that using lethal force was necessary to prevent death or serious injury. Jurors throughout the country face the same question in homicide cases where the defendant claims to have acted in self-defense, regardless of whether their state’s law imposes a duty to retreat on people attacked in public places. There is nothing special about Florida’s law that made Drejka’s defense any stronger than it otherwise would have been.
It’s true that Pinellas County Sheriff Bob Gualtieri initially declined to arrest Drejka, but that decision was plainly mistaken. Florida’s law says police “may not arrest [a] person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.” In this case, there was not only probable cause to believe the shooting was unlawful; there was enough evidence to prove Drejka’s guilt beyond a reasonable doubt.
Explaining his decision not to arrest Drejka, Gualtieri misrepresented Florida’s law. “Stand Your Ground allows for a subjective belief by the person that they are in harm’s way,” he said, and “we don’t get to substitute our judgment for Drejka’s judgment.” That is simply not true. A “subjective belief” is not enough to establish self-defense under Florida’s law; that belief has to be reasonable. Contrary to Gualtieri’s gloss, police and prosecutors are required to assess the reasonableness of a suspect’s judgment. Gualtieri himself said that he would not have shot McGlockton in the same circumstances and that Drejka “probably could have” defended himself by brandishing the weapon without firing it.
The Times nevertheless cites Gualtieri’s misinterpretation of Florida’s self-defense law, which was criticized by the legislators who wrote it and by the National Rifle Association, as evidence that the state’s rules are dangerously loose. “Sheriff Bob Gualtieri of Pinellas County did not initially arrest Mr. Drejka…citing Stand Your Ground,” it says. “One of Florida’s most far-reaching pro-gun statutes, the law says that people who believe they are in grave danger do not have to retreat from a confrontation, even if they can safely do so, and instead have the right to use deadly force.”
Notice that the Times repeatedly omits the requirement that a defendant’s belief about the danger he faces has to be reasonable, not merely sincere. In any event, the duty to retreat is not relevant to this case, just as it was not relevant to George Zimmerman’s defense after he shot Trayvon Martin in Sanford, Florida, in 2012.
Both defendants claimed lethal force was necessary to stop an ongoing attack that threatened to kill or seriously injure them. In Zimmerman’s case, that defense was far more plausible, since the evidence, including his injuries and eyewitness testimony, supported his claim that Martin had tackled him and was knocking his head against the pavement. In Drejka’s case, given that McGlockton broke off his attack and retreated after Drejka drew his gun, it was hard to see how the use of deadly force could be justified.
The jurors watched the video of the encounter hundreds of times, one of them told the Tampa Bay Times. “I had a hard time seeing what [Drejka] said he saw,” the juror said. “Did I feel it was necessary for him to pull the trigger? Absolutely not.”
An alternate juror agreed that “it really came down to…the fact that once the gun was drawn, he, the victim, retreated….The defendant had enough time to make the decision that once he saw the victim retreating, that he did not have to pull the trigger.”
The jury foreman likewise told a local TV station, “He had time to think, ‘Do I really have to kill this man?’ And no, he didn’t, but he chose to.”
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