Effect of provocation under Stand Your Ground

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Bruenor
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Re: Effect of provocation under Stand Your Ground

Post by Bruenor »

Another lawyers view of the incident. court docs also at link.
https://legalinsurrection.com/2018/08/m ... -shooting/" onclick="window.open(this.href);return false;
Drejak has a potential, if marginal, justification claim of self-defense here. The key issue is whether his decision to fire the shot was made while Drejak held a reasonable perception of an imminent deadly force attack. Keep in mind that “deadly force” is defined to include not just force capable of causing death, but also force capable of causing serious bodily harm.
It’s worth keeping in mind, as well, that at trial the prosecutors will need to convince a unanimous jury, likely of six jurors in Florida, that they have disproved self-defense beyond a reasonable doubt, the legal standard in 49 states (all except Ohio), and a high legal standard.

Even prior to trial, however, the state must be prepared to disprove self-defense by clear and convincing evidence. That’s because at his discretion Drejka can request a self-defense immunity hearing, make a prima facie case of self-defense (definitely possible on these facts), and compel the state to disprove that claim by the legal standard of clear and convincing evidence.
Oh look Ohio got a mention... :(
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Re: Effect of provocation under Stand Your Ground

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DontTreadOnMe wrote:
Mustang380gal wrote:But how many times have we discussed that we may not know all of the variables when we walk into an argument between 2 people?
Two strangers maybe. These weren't 2 strangers to him. You can't honestly tell me that you think ... no you know what I'm not even going to engage you on this any more. If you can't see the difference between engaging two compete strangers vs. a person confronting someone's spouse and 5 y.o. son then IMO you're incapable of having a genuine discussion about this.
I can see the difference. The children were safe in the car. There was no weapon in Drejka’s’ hand. She got out of her car where she was safe and had a 2 ton weapon at her disposal.

McGlockton could have put himself between Drejka and Jones, told Jones to get back in the car, got in the car and left. I can tell you that is more than likely what my husband would do. Block the guy from me, let me make a retreat then he can retreat. Everybody goes home in one piece. And I would have gotten an earful about leaving the safe confines of the car.

It is a sad situation. All three acted like fools in their own way. Many lives are ruined.
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Re: Effect of provocation under Stand Your Ground

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The fact that Drejka is going to be tried for manslaughter reminds me of the movie; "Bonfire of the Vanities."

The Sheriff follows the law and doesn't arrest a suspect because he acted within the legal criteria for using lethal force.

Then the media and politicians then throw a hissy-fit. The State Attorney, also a politician, decides to prosecute to satiate the vengeful palate of people who don't like the idea of someone defending themselves and would rather have the nanny-state give them free pacifiers.

McGlockton was a thug who got what he deserved. This is nothing but political and public spectacle. Why don't we go back to lynch mobs? :roll:

I hope Drejka kicks McCabe's butt in court.
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Re: Effect of provocation under Stand Your Ground

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Mustang380gal wrote:But how many times have we discussed that we may not know all of the variables when we walk into an argument between 2 people? That's exactly what McGlockton did. He could not possibly have evaluated the situation from the time he walked out the door directly to Djeka and shoved him to the ground. How could he have determined that Jones was being threatened?

Don't tell me the guy who walked in told him, and that is why he is justified. A prudent person would have gone and seen whether the guy was lying or telling the truth. And a prudent man probably would have asked what was going on before hands were laid on another person.
McGlockton walked out and observed Drejka before pushing him. What is getting lost here is that McGlockton is not uninvolved when his girlfriend is being threatened. That would be like saying if somebody was attacking your child when you are around the corner that you are not justified in coming to your child's aid because you were not initially involved. Nonsense.

As to repeatedly pointing out that the girlfriend got out of the car, remember that her 5 yo child was not in the car with her. We are talking moments and getting out of the car, although it may not have been YOUR reaction, doesn't mean she did not feel fear. A car is no guarantee of safety. Wasn't some guy killed being punched through an open car window a few years back?
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Re: Effect of provocation under Stand Your Ground

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https://www.cnn.com/2018/08/14/us/flori ... index.html

Granted it is CNN but they are citing specific police reports. This guy has a history of provoking these situations including one incident where he was actually cited when he was rear-ended which tells you something. These are just the incidents that garnered a police report which tells me there are more.
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Re: Effect of provocation under Stand Your Ground

Post by High Power »

catfish86 wrote:https://www.cnn.com/2018/08/14/us/flori ... index.html

Granted it is CNN but they are citing specific police reports. This guy has a history of provoking these situations including one incident where he was actually cited when he was rear-ended which tells you something. These are just the incidents that garnered a police report which tells me there are more.
So is it okay for the media to ignore McGlockton's criminal record?
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Re: Effect of provocation under Stand Your Ground

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High Power wrote:
catfish86 wrote:https://www.cnn.com/2018/08/14/us/flori ... index.html

Granted it is CNN but they are citing specific police reports. This guy has a history of provoking these situations including one incident where he was actually cited when he was rear-ended which tells you something. These are just the incidents that garnered a police report which tells me there are more.
So is it okay for the media to ignore McGlockton's criminal record?
The media will do what the media does - create an uproar whether there is reason for one or not.

All of this talk is fun, but it's mostly irrelevant to the issue which is whether McGlockton's actions in backing up showed that the immediate threat was over. If the jury decides it did, the shooter gets three meals and a cot for a couple of years.
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Re: Effect of provocation under Stand Your Ground

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schmieg wrote: The media will do what the media does - create an uproar whether there is reason for one or not.

All of this talk is fun, but it's mostly irrelevant to the issue which is whether McGlockton's actions in backing up showed that the immediate threat was over. If the jury decides it did, the shooter gets three meals and a cot for a couple of years.
If convicted, it may be life.

From Legal Insurrection/Andrew Branca:
[AFB: Update, just reading the charging document closely now, and see Drejka was charged under Florida Statute §775.087(1)), Florida’s so-called “10-20-Life” mandatory minimum sentencing law, the one that caught up Marissa Alexander. I’ll discuss the details of this in more detail in a future post, but in effect it means that if convicted under that provision of the law Drejka is looking at life in prison, even though charged “merely” with manslaughter rather than murder, because manslaughter is a first degree felony and this killing involved the use of a firearm.]
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Re: Effect of provocation under Stand Your Ground

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One of the legal beagles in one of the articles made the comment that in Florida the prosecutor will likely get to use the prior incidents of Drejka as a modus operandi. This guy had a habit of doing this type of thing and it was a matter of time that he provoked this type of incident. I have CCW Safe insurance and they provide a series of good education tools that really break down past incidents with varying outcomes as to the factors at play. Suffice it to say Drejka has done everything these courses tell you to avoid doing.
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Re: Effect of provocation under Stand Your Ground

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Mustang380gal wrote:
schmieg wrote: The media will do what the media does - create an uproar whether there is reason for one or not.

All of this talk is fun, but it's mostly irrelevant to the issue which is whether McGlockton's actions in backing up showed that the immediate threat was over. If the jury decides it did, the shooter gets three meals and a cot for a couple of years.
If convicted, it may be life.

From Legal Insurrection/Andrew Branca:
[AFB: Update, just reading the charging document closely now, and see Drejka was charged under Florida Statute §775.087(1)), Florida’s so-called “10-20-Life” mandatory minimum sentencing law, the one that caught up Marissa Alexander. I’ll discuss the details of this in more detail in a future post, but in effect it means that if convicted under that provision of the law Drejka is looking at life in prison, even though charged “merely” with manslaughter rather than murder, because manslaughter is a first degree felony and this killing involved the use of a firearm.]
Possible. Not likely.
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Re: Effect of provocation under Stand Your Ground

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https://www.washingtonpost.com/news/pos ... c6bec38c7b

Watching this video from when Drejka first approached, I watched the other persons entering the store. ALL of them were looking at Drejka. He had the attention of everyone in the vicinity. Many of them were taking long pauses and observing. This is not people observing a non-threatening conversation. The one guy walking in even pauses with the door open like he is considering intervening. The lady exiting the store is drawn to look back over her shoulder at Drejka. The comments earlier that Drejka is calmly telling her not to park in a handicap spot are disproven by the others in the video. He is causing concern by all observers in view. The one guy who held the door comes back out with McGlockton and is also approaching when Drejka pulls out the gun and shoots as McGlockton is backing away.

Key difference between Zimmerman and this case: Video. Also the witnesses all have a clear view.
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Re: Effect of provocation under Stand Your Ground

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catfish86 wrote:https://www.washingtonpost.com/news/pos ... c6bec38c7b

Watching this video from when Drejka first approached, I watched the other persons entering the store. ALL of them were looking at Drejka. He had the attention of everyone in the vicinity. Many of them were taking long pauses and observing. This is not people observing a non-threatening conversation. The one guy walking in even pauses with the door open like he is considering intervening. The lady exiting the store is drawn to look back over her shoulder at Drejka. The comments earlier that Drejka is calmly telling her not to park in a handicap spot are disproven by the others in the video. He is causing concern by all observers in view. The one guy who held the door comes back out with McGlockton and is also approaching when Drejka pulls out the gun and shoots as McGlockton is backing away.

Key difference between Zimmerman and this case: Video. Also the witnesses all have a clear view.
Well I guess it may look like they are all looking at him, but maybe they are also looking at the woman screaming from the car as well. Jacobs, by her own admission was yelling back at Drejka during the incident.
“By this time a witness pulls up and everybody hears us going back and forth with one another."
And I still say that a reasonable person who is in fear of being assaulted would not leave the safety of their vehicle and close distance with the person instilling that fear, especially when there are 2 small children in the car as well. In fact that action could be interpreted as being the aggressor.
Ignorant or Stupid, I'm not sure which is worse. If someone were stupid, at least they'd have an excuse for all the dumb things they say.

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Re: Effect of provocation under Stand Your Ground

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Then again, maybe she feels she can't leave because McGlockton is in the store with her 5yo son and her children are in the car so her best course of action is to get out of the car. You can't say why she left the car. Her leaving the car has nothing to do with whether she felt fear. Did you know that people experiencing fear often do irrational things...something you are failing to consider. She may well have felt trapped in the car.

I know that in the Montana incident where the German Exchange student was killed in a garage ambush, the guy bragged to a number of people that he was going to shoot the intruder and it was used to convict him. In this case, this guy has a history of provoking arguments over handicapped spots and threatening to shoot them. Don't think that won't be admitted and won't play a part. This guy is nothing but a bully who shot somebody that stood up to him. He also has a history of picking fights with women. I don't get why somebody would paint this lugnut as some innocent guy concerned about handicapped parking who had to defend himself when he was attacked for no reason.
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Re: Effect of provocation under Stand Your Ground

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catfish86 wrote:Then again, maybe she feels she can't leave because McGlockton is in the store with her 5yo son and her children are in the car so her best course of action is to get out of the car. You can't say why she left the car. Her leaving the car has nothing to do with whether she felt fear. Did you know that people experiencing fear often do irrational things...something you are failing to consider. She may well have felt trapped in the car.

I know that in the Montana incident where the German Exchange student was killed in a garage ambush, the guy bragged to a number of people that he was going to shoot the intruder and it was used to convict him. In this case, this guy has a history of provoking arguments over handicapped spots and threatening to shoot them. Don't think that won't be admitted and won't play a part. This guy is nothing but a bully who shot somebody that stood up to him. He also has a history of picking fights with women. I don't get why somebody would paint this lugnut as some innocent guy concerned about handicapped parking who had to defend himself when he was attacked for no reason.
And maybe she got out of the car because she was angry that this guy was calling her out for breaking the law. Did you know that people experiencing anger often do irrational things? Just like me, you can't say why she left the car, you can't say what words were exchanged you don't know anything other than what has been reported. Something you are failing to consider.

I don't get why someone would convict anyone in the court of public opinion as guilty of murder when they don't have any confirmed facts of the actual incident at hand other than a grainy video with no audio. He has been charged, he will have his day in court, evidence will be presented, witness will testify under oath and a jury that hears and sees that evidence will render a verdict. Until that verdict is rendered I am done with the continual speculation and the ever increasing stretching of hypotheticals. I do know one thing though, if after hearing all the evidence none of us will be privy to, a jury finds Drejka not guilty I am certain at least one person on this forum will stay true to form and won't get how they could have made such a huge mistake.
Ignorant or Stupid, I'm not sure which is worse. If someone were stupid, at least they'd have an excuse for all the dumb things they say.

Pass the Peace Pipe I need another hit

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Re: Effect of provocation under Stand Your Ground

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For one thing, guilty people get off and innocent people are convicted.

For another, so you now admit you really don't know why she got out of that vehicle any more than I do. But we do know he initiated the conversation and it was threatening enough to get the attention of everybody in view of the camera.

We also know that when the shot was fired the victim was retreating.
God,
Grant me the serenity to accept the things I cannot change,
the courage to change the things I can
and the Wisdom to know the difference.

Carrying a gun is a right, not a crime.

Gun control is racist.
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