FLORIDA FIREARMS – Law, Use & Ownership

The Clearwater Convenience Store Tragedy – and Stand Your Ground

by Jon H. Gutmacher, Esq. – author of the book, Florida Firearms.

On July 20, 2018, in the parking lot of a convenience store in Clearwater, Florida, Michael Drejka, a white man, confronted, and verbally berated an African American woman who’s vehicle was unlawfully parked in a handicap parking space. The woman’s boyfriend, Markeis McGlockton, there with the couple’s children, heard about the dispute, and exited the convenience store, suddenly shoving Drejka to the ground with great force. A video camera recorded it all. Drejka’s fall did not seem to injure him, however, he withdrew a handgun, and pointed it at McGlockton who already seemed to be backing away. When the firearm came out, Markeis McGlockton, appeared to turn to walk away, and was shot. He later died from his wounds. Police responded, and did not arrest Drejka, on the grounds that his actions were arguably based on Florida’s “Stand Your Ground” laws. It is unclear whether the police had access to the store video that clearly captured the entire event. Under any circumstances, the case was sent to the State Attorney for review. Because there was no arrest – media became heavily involved in coverage of the case, and as always, there was the usual attack on the “Stand Your Ground” law as being racially biased. This article is an answer to some of the legal issues involved. However, and as an update, the State Attorney charged Drejka with manslaughter, and the case is now pending. This is what I predicted would happen, from the outset. (8/13/2018)

Of course, the “Stand Your Ground” law only seems to come under attack when racial issues are fairly, or unfairly tied to it. Unfortunately, criticism is most intense when a prosecution or arrest does not happen immediately. But in actuality, a delay in making an arrest, or in making a decision about whether to prosecute an individual is usually for the benefit of the prosecution, and the alleged victim. It has nothing to do with whether the person who allegedly misused self defense is guilty or not, or should – or should not be prosecuted. I’ll get into that later, at the end of this article.

But, “Stand Your Ground” it is actually a very complex area, and widely misunderstood. As a general rule – the Stand Your Ground Law – only applies to a defender who uses, or threatens the use of deadly force in the lawful defense of themself or another. It’s been a basic tenet in federal law since 1895, and it’s primary purpose was to negate the common law legal requirement of using “retreat” before a person could use deadly force in resisting or stopping an imminent (ie: “immediate”) attack on themself or another person. In all those other situations, where deadly force was not being used – the law normally has never had a requirement of retreat.

Today, the “Stand Your Ground” law in Florida as set forth in Florida Statute 776.012, allows a person who is attacked, or threatened with immediate attack, to face their attacker without retreating – and where it is reasonable to believe that the attack will result in imminent death or “great bodily harm” (ie: serious injury) – to use or threaten the use of deadly force. In today’s society – that normally means that the defender threatens, or uses a deadly weapon such as a firearm, knife, or other implement capable of causing death or serious injury to the other person.

That’s the simple explanation. But, as you begin to read through the other statutes and cases that affect Stand Your Ground, you find that there are more subtle requirements involved before self defense can be lawfully used, as follows:

1. You, or another individual, must be unlawfully attacked, or about to be unlawfully attacked in an immediate (“imminent”) sense.

2. The response of the defender must be reasonable in relationship to the attack, or perceived attack. You cannot lawfully exceed the degree of force being used against you, unless it is reasonable to believe that you will suffer death or great bodily harm if you do not use deadly force.

3. The use of deadly force, or any force – is only lawful when there is a reasonable apprehension of an imminent (immediate) attack.

4. If the other person clearly withdraws from the fray, or clearly indicates they want no part of further violence – your right to use self defense disappears at the moment you realize that, or should reasonably realize that. In other words – if the danger to yourself or another reasonably appears to have ended – your right of self defense has also ended.

5. The burden of deciding whether a person has lawfully used self defense is on the government. Thus, before an arrest can lawfully be made, the arresting agency should assume that the defender acted legally, unless there is proof that clearly overcomes that assumption. In many cases, that will mean that the decision on whether to arrest or not will be delayed – and passed on to the State Attorney, who will have the law enforcement agencies involved submit a more extensive investigation so that any prosecution will hold up in court. This is especially true in Florida as any arrest triggers what is known as the “speedy trial” rule. Under that rule, if an individual is arrested for a felony, they must be brought to trial within 180 days or the case against them can be dismissed forever. Obviously, an arrest made too early, before the State has fully investigated a self defense case can have a devastating effect on the prosecution. That’s why these cases like this may take weeks to months before a decision to prosecute is made. And in cases such as this – the “rush to justice” by the family of a decedent, and often by outside agitators, only hurts the ability of the State to prosecute, by putting pressure on the State Attorney to prematurely bring a case before all the evidence is ready.

To me, this was not a “Stand Your Ground” case – because the issue of “retreat” really was never involved. To understand, you should know that the “Stand Your Ground” law came about because the “retreat rule” was, and continues to be unworkable. When faced with an immediate attack, especially from an armed individual, there is rarely any actual “reasonable means of retreat”. Thus, the prior law of forcing individuals to try to retreat before they were allowed to try to defend themselves against a deadly attack by the use of deadly force was unfair, unworkable, and unreasonable. The Stand Your Ground law recognized, and corrected that. It protects us all – and was never meant to be applied in a racially discriminatory manner. It only negates the need to retreat if you are unlawfully physically attacked with deadly force.

The one additional issue not really pertinent to this case, but one that should be discussed:
What if the shots were unintentional? I mean, what if Drejka had his finger on the trigger in anticipation of an attack, and in the heat of the moment didn’t realize he put too much pressure on it? It’s not all that hard of a mistake to make when your pumping adrenalin a mile a minute – and that would certainly negate any criminal intent. Plus, it could easily account for more than one discharge. All of a sudden — you have a very different case. Of course, that’s not the situation here – so I’ll pass on any further discussion, and leave that to another time.