Thursday, August 16, 2018
Public safety

In latest ‘stand your ground’ case, a question: Who started it?

CLEARWATER — A popular question has emerged in the weeks since Markeis McGlockton was shot and killed in a convenience store parking lot.

Didn’t the shooter, Michael Drejka, trigger the whole situation when he took the law into his own hands, confronting McGlockton’s girlfriend about why she had parked in a handicap-reserved spot?

"You cannot provoke a fight and then hide behind ‘stand your ground,’" said Michele Rayner, a Clearwater attorney representing McGlockton’s family, referring to the controversial self-defense law that has protected Drejka from arrest.

Technically, that’s correct. Florida law does have a provision that says in part that someone cannot assert a "stand your ground" defense if the person "initially provokes the use or threatened use of force against himself or herself."

And it was during that heated argument over the parking space that McGlockton, who learned of the brewing conflict from witnesses, left the store, walked up to Drejka and pushed him to the ground. Drejka then shot McGlockton, later telling Pinellas deputies he was in fear of further attack.

But whether that part of the law comes into play in this case is iffy. According to legal experts, it generally doesn’t apply when the confrontation is just verbal, barring any threats of violence.

"Initiation of conduct that’s offensive, annoying, sticking your nose into somebody else’s business — those actions don’t preclude stand your ground protection from the person that did it," said Clearwater defense attorney Stephen Romine.

Or, in the words of Stetson University College of Law professor Charles Rose: "The law is set up to allow you to be as big an ass as you want to be, as long as it’s just with words."

Pinellas County Sheriff Bob Gualtieri, who has said the stand your ground law precludes his agency from arresting Drejka, has taken a similar stance. At a recent news conference, the sheriff, who is a lawyer, said what was "merely a discussion about why she’s parked there … didn’t provoke the attack." His agency has forwarded the case to the Pinellas-Pasco State Attorney’s Office to decide whether to press charges.

READ MORE: No arrest in fatal shooting during argument over handicap parking space.

While there is no audio available on a widely circulated surveillance video of the shooting, no evidence has come out that Drejka verbally threatened McGlockton or his girlfriend, Britany Jacobs.

However, Rayner contends Drejka’s body language was threatening, pointing to frames in the video as Jacobs starts to get out of the car when Drejka sticks his hand out. She said that could be perceived as him reaching toward the car door handle.

"It can be argued, but for Mr. Drejka provoking this incident, whether it’s in words or in actions, and … what Markeis (McGlockton) was perceiving at the time before he pushed him, you can make the case that Mr. Drejka was the initial aggressor," she said.

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The case is the latest to thrust Florida’s stand your ground law into an emotional, at times racially charged national debate.

Five Democratic lawmakers and state branches of the National Association for the Advancement of Colored People have asked the Department of Justice Civil Rights Division to investigate the shooting of McGlockton, who is black, by Drejka, who is white. State Sen. Darryl Rouson, D-St. Petersburg, has called for a special session to rework the law, a steep challenge in a Republican-led Legislature.

The fact that Drejka didn’t, say, call police or alert the store clerk of the illegal parking job instead of acting on his own is just one of many details that hasn’t sat right with some.

"It bothers people when all of a sudden a bad guy gets the benefit of protection," said Robert Heyman, a St. Petersburg defense lawyer who previously worked as a prosecutor.

It’s hard not to compare the situation to other controversial stand your ground shootings. Prominent civil rights attorney Benjamin Crump, who is representing Jacobs, lumped in the case with another one he was involved in: Trayvon Martin, who was shot and killed by a neighborhood watch volunteer in 2012.

While the shooter, George Zimmerman didn’t end up using stand your ground as a defense, police didn’t arrest him at first because of it.

At a recent news conference, Crump pointed out that, like Drejka, whom he labeled a "self-appointed, wannabe cop," Zimmerman pursued Martin instead of letting law enforcement take over.

"It’s still ludicrous how you can claim that you have fear of your life but yet you approach and start the confrontation with the individual," he told reporters.

Or, take some cases closer to home. In 2008, Charles Podany rode a bike through his Thonotosassa neighborhood to tell a man to drive slower. A drunken friend of the driver, Casey Landes, started beating Podany, who then shot him in the head. A judge threw out his manslaughter charge after his lawyers, including Romine, argued "stand your ground."

There’s also Nick Julian IV. In 2015, he confronted his neighbor, Carlos Garcia, about playing his music too loud in their Tampa neighborhood. The argument turned violent, then fatal, when Julian shot Garcia.

The Tampa Bay Times found that in the minutes after the shooting, Julian contacted a hotline designed to help callers strengthen their self-defense claims. Hillsborough County’s state attorney never charged him, saying there was insufficient evidence to rebut Julian’s claim of self defense.

READ MORE: Tampa man shoots father of three, then calls ‘stand your ground’ hotline.

Legislators passed stand your ground in 2005, eliminating Florida’s long-standing duty to retreat if a person feels threatened before using potentially deadly force. Several criteria must be considered in deciding whether someone can be protected under the law: Were they acting lawfully? Did they have a right to be there? And did they have reasonable fear of serious injury or death when they used force?

But, as with this latest controversy, it’s not always that simple. Rose compared it to an onion.

"Every single layer has a potential legal argument that could send it off in another direction," he said.

READ MORE: Five times Florida’s ‘stand your ground’ law sparked controversy.

That includes the initial aggressor section. While the law doesn’t contain a definition of "provokes," which, in dictionary terms means "to arouse to a feeling or action,’’ you have to consider it within the context of the whole statute, Romine said, which talks about use or threatened use of force.

"Provocation is generally going to be a battery or an assault or some type of act that permits another person to respond with force," he said.

In fact, jury instructions from the Florida Supreme Court regarding justified use of force are narrower than the law’s language. The law says "initially provokes.’’ The high court’s jury instructions are a more specific "force or the threat of force to initially provoke.’’

The instructions cite a 2001 case, Joelle Gibbs vs. State of Florida, that boiled down to whether offensive language or a punch started a fight between two women that would end with one of them dead.

An appeals court judge determined the definition of provocation should be clarified to "make the jury aware that the word ‘provoked,’ as used in the instruction, did not refer to mere words or conduct without force."

Florida Sen. Dennis Baxley, one of the law’s original authors, wouldn’t comment on McGlockton’s case in a recent interview, but he said the law is aimed at protecting law-abiding people who defend themselves. He said the aggressor is who turns the encounter violent.

"You don’t have to attack somebody because you don’t like what they said," he said. The "potential exists anytime you exert violence against another person, this can be the outcome."

That attitude is what critics of the law have called out from the beginning: it creates a "shoot first, ask questions later" mentality.

Said Rose: "One might ask oneself whether or not he (Drejka) would be empowered to be so aggressive but for the presence of the stand your ground law and the gun in his pocket."

Senior staff researcher Caryn Baird contributed to this report. Contact Kathryn Varn at [email protected] or (727) 893-8913. Follow @kathrynvarn.

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