Last night “handicap parking spot shooter” Michael Drejka was found guilty of manslaughter, as charged, for the shooting death of Markeis McGlockton. The verdict was returned quickly last night, after the jury had deliberated only a few hours.

Drejka shot and killed McGlockton after McGlockton violently shoved Drejka to the ground in a convenience store parking lot. When shoved, Drejka had been verbally chastising McGlockton’s girlfriend for having unlawfully parked in a handicap parking spot.

As captured by surveillance video, once on the ground Drejka drew a pistol and pointed it at McGlockton, who remained standing over Drejka. Seeing the gun, McGlockton took several steps back and appeared to begin to turn away from Drejka. It was at this point that Drejka fired the single fatal shot. There was roughly a two-second interval between the presentation by Drejka of his gun and the firing of the fatal shot.

You can view that video here:

The case immediately became something of a media circus when the local sheriff mistakenly decided that Florida’s self-defense immunity law, §776.032, prohibited him from arresting Drejka for the killing. (I addressed this at length here: Law of Self Defense: VIDEO: Shove-Shoot Case Sheriff’s Statement.) Nevertheless, local prosecutors soon brought a charge of manslaughter against Drejka, and Drejka was found guilty of that charge by a Florida jury late last night.

Although sentencing isn’t scheduled until October 10, there seems little ambiguity in what that sentence is likely to be. Florida’s “10-20-Life” firearms sentencing statute, §775.087, mandates a 25-year-to-life sentence for a crime committed with a gun in which the gun is used to shoot and kill a victim. Drejka turned 49 earlier this month, so he would be 74 years of age before there is a possibility of his release from prison.

Drejka’s legal defense to the charge of manslaughter was, of course, self-defense. As such the only real legal issue in the case was whether, at the moment Drejka fired the fatal shot, he had a reasonable belief that McGlockton presented an imminent deadly force threat (meaning a threat reasonably capable of inflicting death or serious bodily injury).

Note that this is a different question than whether Drejka was justified in presenting his gun in the first place. It’s quite possible for Drejka to have been legally justified in presenting the gun without being legally justified in firing the shot. I addressed this issue at length in this blog post the day after the shooting occurred: Law of Self Defense VIDEO: Just because it’s lawful to present the gun doesn’t mean it’s lawful to press the trigger (7/20/18)

In evaluating whether Drejka reasonably perceived an imminent deadly force threat from McGlockton at the time he fired the shot, it’s important to differentiate between facts and claims that are relevant to that question and those that are not. Frankly, it seemed to me in my quick review of the trial testimony and argument that there was an excessive emphasis on irrelevant matters.

To start, even the video itself is not decisive on the question of whether Drejka was seeing what the video camera was seeing, if only because of differences in position and angle. Also, the camera had not just been thrown violently to the ground, a physical experience that can affect perception. The reasonableness of Drejka’s perception of a threat is properly judged in the context of a person in his circumstances—that is, was it the reasonable perception of a person who had just been violently thrown to the ground?

Related, it doesn’t matter if McGlockton actually presented a deadly force threat to Drejka. Rather, it only matters if Drejka reasonably perceived such a threat.

The prosecution made much of the fact that McGlockton was, in effect, killed for trying to protect his girlfriend and children. Really, it doesn’t matter why McGlockton shoved Drejka. It is irrelevant whether McGlockton’s motivation for shoving Drejka was good (e.g., he was protecting his girlfriend and children) or bad (e.g., he was going to teach this obnoxious stranger a lesson he wouldn’t soon forget!), so long as McGlockton’s use of force was unlawful (which it clearly was). All that matters is whether Drejka could reasonably have perceived that he remained in imminent danger of a deadly force attack at the moment he fired the shot.

Conversely, much was made by the defense in this case of the fact that, apparently, McGlockton had relatively high levels of illegal drugs in his system at time. Frankly, this is also irrelevant under the facts of the case. McGlockton being intoxicated could be relevant if there was some dispute as to whether it was McGlockton or Drejka who was the initial physical aggressor in this case or if the drugs involved tended to induce violent behavior, but that issue was not in dispute. The video clearly shows that it was McGlockton who was the initial physical aggressor.

I’ve already mentioned that the reasonableness of Drejka’s perception of the threat must be assessed in the context of a person in his circumstances, specifically that of a person who has just been violently thrown to the ground. If being subject to that physical attack led him to make imperfect use-of-force decisions, the responsibility for those errors is not on Drejka, but on McGlockton who subjected Drejka to that force.

Unfortunately for the defense, even my quick review of the testimony from the state’s witnesses on the scene shortly after the shooting occurred undercut any claim that the impact of McGlockton’s attack had degraded Drejka’s ability to make sound use-of decisions.

Drejka complained of no meaningful injury at the time that could have reasonably affected decision making. There was, for example, no evidence of Drejka having struck his head on the ground as a result of being shoved there, there were no complaints by Drejka of being disoriented in any manner, Drejka never requested any meaningful medical attention, and so forth. So, while one might suppose that being knocked violently to the ground could readily cause imperfect use-of-force decision making, there appeared little evidence supporting such an inference, and considerable evidence lacking.

Absent such disorientation, it would be expected that Drejka’s perception of McGlockton’s conduct after presentation of the gun would accurately reflect what the surveillance camera appeared to capture—McGlockton realizing that he’d brought his fists to a gunfight, deciding that discretion was the better part of valor, and backing away from the fight.

This case is an excellent example of how tiny changes in the fact pattern could lead to drastically different legal outcomes. If McGlockton had made any apparent movement consistent with re-engaging Drejka, Drejka’s perception of an imminent attack would likely have been unquestionably reasonable. Even a mere shift of McGlockton’s body weight toward, rather than away from, Drejka might have been sufficient. Such evidence was not in the case, however.

Also extremely unhelpful to Drejka was his post-event interrogation by police, to which he voluntarily consented, without legal counsel present. In that interrogation a happily compliant Drejka, believing he’s just helping the police understand why his shooting of McGlockton was no problem, hardly an inconvenience, as the internet meme puts it, agrees to conduct a re-enactment of the shooting.

It goes without saying that any re-enactment in an enclosed space is going to be an imperfect reflection of what happened out in an open parking lot, and the differences between the two in this case were not advantageous to Drejka. I covered this interrogation at some length, along with video of the interrogation itself, here: Examining the Michael Drejka (Handicap Spot) Interrogation (10/28/18)

(Not relevant to Drejka’s guilt, but a useful cautionary tale, is the fact that one of the police officers who conducted this interrogation would later be arrested for arriving at a crime scene in his official vehicle while driving intoxicated: The Risks of Being Judged By Strangers.)

There may be circumstances in which it is prudent to speak briefly with police responding to the scene of your self-defense event, although the default position should always be to simply request legal counsel (and medical attention, if appropriate). There is never, however, any good reason to be speaking at length to anyone about the event without first consulting with legal counsel, and there is never, ever, ever any good reason to voluntarily engage with professional interrogators without your legal counsel actually present (if then).

Drejka’s past conduct involving claims that he had allegedly threatened strangers with shooting, under circumstances in which shooting would clearly have not been lawful, was also extremely damaging to his narrative of innocence. It created the impression (perhaps correctly) of a hothead who was quick to threaten to go to the gun when doing so was unlawful and unnecessary. State prosecutors presented at least two witnesses who testified to this effect, and the testimony was of a sort not readily subject to effective impeachment by the defense.

OK, folks, I may have more to say on this case later, but I’m short on time today, so this will have to wrap things up for this post. Go to it in the comments.

–Andrew

Attorney Andrew F. Branca

Law of Self Defense LLC

Law of Self Defense CONSULT Program

[Featured image is screen capture from video of verdict being read in court.]



