FLORIDA FIREARMS – Law, Use & Ownership

Frailty & Susceptibility as a defense to the Use of Deadly Force in Self Defense
by Jon H. Gutmacher, Esq.

In July of this year (2018) we all can remember the Clearwater convenience store parking lot shooting involving Michael Drejka and Markeis McGlockton. Where McGlockton forcefully pushed Drejka to the ground, and as a result Drejka shot him dead – claiming he was in fear of his life. If you read any of my previous blog posts on the incident – you know I felt the shooting was totally unjustified. Yet, reading Facebook — so many people disagreed with me saying that it was “reasonable” for Drejka to feel so threatened. However, like I predicted — Drejka was charged with manslaughter, and now we’ll have to wait for the legal machinery for the final outcome.

But, are there any lessons to be learned from the shooting?

Why, was I so positive it was a bad shooting?

Well, as I’ve said many times in my book, and everywhere else — the use of deadly force must be “objectively” reasonable — not just “subjectively” reasonable. By that, I mean that just because you have a real fear of being attacked and as a result dying – or being substantially injured (“great bodily harm”) — the surrounding circumstances must support that belief.

In the Clearwater case — this was the problem. Sure — Drejka subjectively believed he was in mortal danger — but all the surrounding facts (ie: “objective belief”) were contrary to that:

1. no weapons were involved by McGlockton
2. McGlockton did not pursue his initial attack
3. It appeared that McGlockton had fully disengaged from any further aggression
4. It appeared that McGlockton was retreating
5. There was no warning given by Drejka before shooting McGlockton

In Florida — if all that’s involved is that you’re gonna receive the normal list of injuries that can result from a fist fight without needing serious hospitalization, broken bones, or permanent injury — deadly force is normally not an option. But, what can change that?

Well . . . one thing that can change that . . . or at least raise a substantial argument that deadly force is both reasonable and necessary — happens when the person attacked is particularly susceptible to serious injury. This is called in legal circles “an eggshell” defense. For example: the person had recent surgery of a vital part of the body where re-injury could cause death or great bodily harm; or they have an existing condition or injury where a direct hit from a simple punch or push could cause death or great bodily harm.

Such a case is Jackson v. State, 43 Fla.L.Weekly D1845 (Fla. 1DCA 8/10/2018). In that case Jackson was convicted of aggravated battery with a firearm. In his defense he claimed that the “victim” had attacked him outside a bar after words were exchanged, and had him against a wall hitting him repeatedly on both sides of his face until he finally withdrew his firearm and shot the man. Jackson further claimed that one of the punches left him with nerve damage to one eye, and that he had recent neck and shoulder surgery where he feared re-injury might break his neck. However, since “in most cases, a person in a fist fight lacks a sufficient justification to use deadly force” — the trial judge refused to allow an instruction on the use of deadly force as a defense to the shooting. As a result — Jackson was convicted, with a rather long mandatory prison sentence.

In reversing the conviction, the appellate court held that the failure to give the requested instruction, and allow the jury to consider whether a person in the defendant’s position could have a “reasonable fear of imminent death or great bodily harm” was a mistake as the defendant was a person who arguably had a particularized susceptibility to serious injury. Had he not had those conditions — then he would have been out of luck, and the conviction would have stood.

So . . . Jackson gets another trial . . . and if the jury believes him — he should be found not guilty. But, why did I use this case in the first place — and why combine it with the Clearwater shooting?

Well, I did that to illustrate another important point — that Florida law will likely not support Drejka’s claim that he could use deadly force — as a matter of law. Because there are no facts that make this anything beyond “a person in a fist fight”.

That’s my guess on the outcome of the Drejka case. But again — since that’s months away from the writing of this post — only time will tell.