July 23, 2018

IMPORTANT NEWS ON THE LAW OF SELF-DEFENSE: If a person shoves you, you can shove back. You don’t have the right to kill him. You can only use lethal force to meet reasonably anticipated lethal force. That can be unarmed force, under the right circumstances, but it usually isn’t. And “Stand Your Ground” laws don’t change that.

Note that the same rules apply to police, though that’s more theoretical than real in application.

But for much more detailed analysis, from an actual expert on the subject, see this post by Andrew Branca at Legal Insurrection.

Rather surprisingly, Pinellas County Sheriff Bob Gualtieri has announced that Drejka would not be arrested over the shooting, on the basis of Florida’s “stand your ground” self-defense law. The facts of this confrontation do not, however, involve any duty-to-retreat issues with respect to Drejka’s use-of-force–he was attacked without apparent warning, and immediately knocked to the ground, and thus placed in a physical position from which physical retreat with safety would have been difficult, if not impossible. . . .

Based on the video footage of this confrontation, I expect a reasonable argument could be made that Drejka’s initial presentation of his handgun was lawful–he’d just been shoved hard to the ground without warning, put in a physical position from which unarmed self-defense would be extremely difficult especially against an attacker nearly half his age who still loomed angrily over him. It’s not hard to see how Drejka could have reasonably formed a reasonable perception of imminent serious bodily injury, which would warrant deadly defensive force.

As often happens when a gun is presented in self-defense, however, here the initial aggressor (McGlockton) decided that he’d goofed in bringing his fists to a gun fight, and he immediately began moving backwards, distancing himself from Drejka. This ought to have been apparent to McGlockton during the two second pause between his pointing the gun and shooting. Had McGlockton maintained his position, and particularly if he had made any movement apparently consistent with continuing to attack Drejka, the fired shot may well have been warranted.

Given that McGlockton was backing up, however, this strikes me as a scenario that plenty of prosecutors would be happy to present to a jury, and argue that the fired shot was not lawful, and which I expect in this instance plenty of police officers would determine at least created probably cause to believe that the shot was not lawful.

Of course, there may well be facts not known to us that could have shaped the Sheriff’s conclusion to not arrest. That, of course, is not the end of this matter, either criminally or civilly. The evidence is being presented to local prosecutors, who will decide whether to take the matter to trial, and the girlfriend of McGlockton, with whom she had three children, has already announced her intention to seek civil compensation for the killing of her children’s father (even throwing out the legal term-of-art “wrongful death”).

If you shove someone to the ground and start kicking them in the head, you may be a candidate to be shot in self defense. If you shove someone to the ground and back away, not so much.

And here’s video of the Sheriff’s statement, with commentary by Branca. Excerpt:

For example, he appears to believe that the legal standard for reasonableness is strictly subjective, which is not the case. One must indeed be in subjective fear, but that fear must be objectively reasonable.

He also talks at some length about his belief that the Sheriff’s office can’t substitute their judgment for that of the shooter—but, of course, they can, and they do, routinely, when they conclude that the facts differ from the claimed judgment of a suspect. And at the same time he explicitly recognizes that now that he’s passed on the case to the prosecutor’s office, so the prosecutor can decide whether to charge, the prosecutor is in the position of substituting their judgment for that of the shooter.

Also, the Sheriff’s implication that the recent change in Florida self-defense immunity law that once a person claims self-defense immunity the law places the burden on the state to disprove immunity by clear and convincing evidence, “this doesn’t happen anywhere else, where one person raises a claim and the other person has to disprove it” (I’m paraphrasing) is nonsense.

In 49 states, when a person raises self-defense as a legal defense the burden of proof shifts to the state to disprove self-defense beyond a reasonable doubt (an even higher standard of proof). The Sheriff may be correct if the discussion is limited to pre-trial immunity hearings, but a burden shift to the state is the norm in self-defense generally.

Frankly, I can see reasonable arguments for either a lawful or an unlawful shoot here. A decision not to arrest is reasonable on these facts, and a decision to arrest would have been reasonable on these facts. But the idea that the Sheriff is obviously and explicitly prohibited by law from making an arrest on these facts is nonsense.

Well, at least it’s not Broward County, where the deputies would have run from an armed man.

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