When Michael Drejka was arrested Monday in the shooting of Markeis McGlockton, it ensured that Florida’s stand your ground law will remain under scrutiny for months to come.
Beyond that? Little is clear.
Seemingly no one can agree on what stand your ground means. It says people who fear they are about to be seriously hurt or killed do not need to attempt to flee before using force, and are later immune from prosecution.
But when asked to apply it, lawyers, legislators and armchair commenters rattle off conflicting interpretations.
An amendment to the law last year put the burden of proof in a stand your ground hearing on prosecutors instead of the defense. That means if Drejka’s lawyers file a motion to dismiss the case, saying he feared for his life after McGlockton shoved him to the ground July 19 in a convenience store parking lot, the State Attorney’s Office will have to prove otherwise.
The Tampa Bay Times searched for similar cases that both began and reached immunity hearings since the latest amendment to the law and found only one. The defendant succeeded in quashing a murder charge.
Drejka’s case — with clear video, witnesses, and a growing national debate — is in the unique position of serving as a referendum on the latest version of what is arguably Florida’s most controversial statute.
"It will be more a debate on the law," said Clearwater defense lawyer Denis deVlaming, "than it will be about Drejka."
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Stand your ground centers on what’s in a person’s mind and whether it’s "reasonable."
Both sides present their arguments and a judge decides whether to throw out a case or move forward to trial.
If Drejka’s lawyers push for a stand your ground hearing, prosecutors will have to demonstrate "clear and convincing" evidence that McGlockton — who approached Drejka as he was arguing with McGlockton’s girlfriend over why she parked in a handicap-reserved spot without a placard — did not pose a threat of serious injury in the moments before the shooting.
That standard falls somewhere between a "preponderance of the evidence," basically more likely than not, and "beyond a reasonable doubt," the widely known standard to find someone guilty, which requires near certainty.
Even lawyers, however, struggle to pin down those terms.
"Law reviews and books have been written on those terms," said Tampa defense lawyer John Fitzgibbons. "It has to be very, very strong evidence."
Pinellas-Pasco State Attorney Bernie McCabe would not discuss the evidence against Drejka in detail. But several legal experts said a stand your ground hearing would follow a predictable course.
The defense, they said, would argue that Drejka, 48, thought McGlockton, 28, was about to seriously hurt or kill him. He told a deputy after the shooting that he thought he saw McGlockton twitch before he pulled the trigger, according to court records.
"He was still physically challenged as compared to the victim and he was still under the effect of a fairly significant shove to the ground with the continuing belief that his life was in imminent danger," said Michael Misa, a Tampa defense lawyer, when asked to anticipate the defense team’s case.
Such an argument will rely heavily on Drejka and his recollection of what was in his head, as well as video of the shove.
Prosecutors will use the same video, as well as witness statements, to try to show that Drejka was acting aggressively and that McGlockton was stepping backward. A detective wrote the two men were an estimated 12 feet apart when Drejka fired, and McGlockton was retreating and turning away.
McCabe said the surveillance video is crucial.
"It takes you right to the scene, and you don’t have to listen to somebody describe it from their memory," he said. "Words can paint a picture. But that isn’t necessarily as good as having the picture."
The surveillance tape will be "dissected and re-dissected," Fitzgibbons said, "like watching a replay in a pro football game."
Carey Haughwout, the public defender in Palm Beach County, said the judge will rule on whether Drejka’s account is credible and if he had reason to fear serious harm.
"Is he mad and that’s why he shoots him?" she said. "Or is he scared and that’s why he shoots him?"
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Since stand your ground’s creation in 2005, a number of notable cases have put a spotlight on the Florida law, but few offer a match to the Drejka shooting.
On Tuesday, a judge in Hillsborough County rejected the stand your ground claim of George Chronister, accused of stabbing another man in a fight. There was a video, but no one died, and no one fired a gun.
Confusion has reigned since last year’s amendment to the law, with two state appeals courts offering differing opinions on whether the change applies retroactively to cases that were pending at the time.
That makes it difficult to use old examples when predicting what might happen if Drejka’s lawyers pursue a stand your ground case. The judge in the Chronister hearing used the new standard, even though that incident predated the amendment.
Likely the first case that tested the burden shift happened in Pinellas County. The St. Petersburg bar fight that ended in the death of Christopher Motlenski occurred a year and a half prior to the law change, but the hearing came after, and prosecutors didn’t argue it should fall under the old law.
Bobby Ryan faced a manslaughter charge after he punched Motlenski, who fell down and hit his head on the pavement. His lawyers successfully pursued a stand your ground defense based in part on surveillance video from the bar.
"We must have watched it 100 times," said one of Ryan’s attorneys, James Beach.
Footage from inside the bar showed Motlenski start heckling Ryan and his friend, Beach said. And it showed the fight outside, during which Motlenski "bull-rushed" Ryan’s friend.
"We filled in the state of mind of Bobby and his friend by their testimony," Beach said. "They were very credible, and obviously the video dovetailed that."
The video showing the encounter between Drejka and McGlockton, Beach said, leaves room for questions. For example, like the Ryan video, it doesn’t have sound. Beach thinks the case will come down to witness testimony to determine whether Drejka’s fear was reasonable.
The Times could find only one case that involved an incident after the law change and that has already gone to a stand your ground hearing. It involved Samuel Barber, a man in Palm Beach County charged with murder.
Haughwout, the public defender, represented Barber. He had been visiting his mother’s house last September when he saw someone — the identical twin of a man accused of killing Barber’s brother months before — in the yard. Barber said he saw that man, Kunta Riddick, reach toward his waist.
Barber first tackled Riddick, according to court records, but then shot and killed him when Riddick swung a piece of wood with a nail at him.
Haughwout said the change to stand your ground did not have a major impact in the case, which she believes would have been thrown out even under the old standard. Her only concern, she said, is that judges are under pressure in stand your ground cases, because quashing charges before trial draws scrutiny.
"It’s a homicide, and the concern is that if a judge thinks a jury is going to acquit him, (then) let’s let the jury do it — it doesn’t have to be on my shoulders," Haughwout said.
If anything, the public defender said, the amendment to the law should make prosecutors less likely to bring weak charges in self-defense cases.
"I never thought the change really made that much of a difference because if you can’t prove it in a pretrial hearing how are you proving it beyond a reasonable doubt in a trial?" she said.
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Critics contend the shift in the law will have its biggest impact before stand your ground hearings even occur. They say the amendment could have a "chilling effect" on authorities, who will think twice before bringing cases that should reasonably go before a judge.
The immunity offered by stand your ground is broad, said University of Miami law professor Mary Anne Franks, and "the statute suggests the person ... would actually be able to sue everybody" if a judge dismisses the charge.
Stand your ground does not mention the specific process for filing a civil suit. But it does state that defendants are immune from an arrest, language that could later bolster a claim of wrongful arrest or imprisonment.
"You have basically cowed law enforcement in saying you need to be very careful proceeding in these cases," Franks said. "They’re being asked to adjudicate something that should be brought out during the trial. It’s cart before horse."
The Times found four cases since June of last year, in the same circuit on Florida’s east coast and reported by Treasure Coast Newspapers, in which prosecutors did not pursue charges and cited stand your ground.
Pinellas Sheriff Bob Gualtieri did not initially arrest Drejka because he said the law did not allow it with the shooting possibly fitting the requirements for stand your ground. But the sheriff publicly supported prosecutors after they decided to file the manslaughter charge.
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The new stand your ground law should not stop state attorneys from moving forward with strong cases, McCabe said, but it "wastes judicial resources."
"We’ve had self-defense available to defendants since the beginning of time, and part of the obligation of a trial is to prove that self-defense does not apply beyond a reasonable doubt," he said. "It’s basically totally unnecessary and ill-advised to have to try your case twice."
The state attorney is confident his prosecutors would succeed in a stand your ground hearing involving Drejka, he said, if the defense calls for it. Months will probably pass before they consider filing such a motion.
"Ball’s in their court now," McCabe said.
TAMPA BAY TIMES COVERAGE: STAND YOUR GROUND CASE
Times staff writer Dan Sullivan and senior news researcher Caryn Baird contributed to this story. Contact Zachary T. Sampson at [email protected] or (727) 893-8804. [email protected] Contact Kathryn Varn at (727) 893-8913 or [email protected] Follow @kathrynvarn.