Re: This is not what "stand your ground" is supposed to be for

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hondo2K0 wrote: Fri Jul 27, 2018 1:41 am
YankeeTarheel wrote: Wed Jul 25, 2018 9:07 pm
shinzen wrote: Wed Jul 25, 2018 10:33 am Let's do a thought experiment. If you were Drejka, would you have done anything differently than he did?

Not just the final part, but the entire situation.
Add this: Would Drejka have been so aggressive if he had NOT been carrying a gun or another lethal weapon?
Drejka is a loudmouth, an argumentative guy so most likely he would act the same way but he was not aggressive, McGlockton was an aggressive one and that got him killed and his and his girlfriend's disregard for rules and regulations.
That's BS. Drejka clearly thought because he was armed he could play citizen cop / Dirty Harry. If he hadn't would he have confronted the GF? And if he had, and McGlockton pushed him down, he could THEN have called 911 and charged McGlockton with A&B. If he was SO concerned, he should have called the cops right off the bat.
Death is final and lasts till the end of the Universe. I don't deny that McGlockton was an asshole to park in HC, but people frequently hassle people who use HC spots even with a sticker or tag. "You don't look handicapped to me!" Not every handicap is obvious, such as a heart condition, and a person picking up a handicapped person will also park in a space while being healthy.

But let's not forget: Drejka was hassling McGlockton's GF and for most of us, hassling our significant other is unacceptable.

Without the gun, this, at most, would be a shove in a parking lot. With it, it's a homicide. I have zero sympathy for Drejka and hope he's charged.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: This is not what "stand your ground" is supposed to be for

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We don't know what Drejka was thinking.
Most likely he would he is one of those people and most HC vans come with sticker extra space needed for lift or ramp.
McGlockton or his girlfriend could call cops and if she left parking and called cops she would be justified in running over Drejka with her car if he kept advancing after her.
We do not know that he did not call cops but it is a low priority call.
Nobody ever said that he said anything like you do not look handicapped to me, he made sure there is no handicap permit before he said anything.

He is an argumentative prick but McGlockton put his hands on him not other way around, so head my advice and in similar situation keep hands to yourself.

Nope, it won't happen, his action was justified.

Re: This is not what "stand your ground" is supposed to be for

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776.012[EM SPACE]Use or threatened use of force in defense of person.—
(1)[EM SPACE]A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

I’m no lawyer but based on the above did McGlockton reasonably believe or perceive imminent force from Drejka? Not deadly force but force. If so the use of force being the shove to the ground may be justifiable.
So, for the sake of argument. Did McGlockton have a right to stand his ground? If so he had no duty to retreat.
But it seems in the video he did retreat after being threatened with deadly force by Drejka.

We’ll never know what McGlockton’s fear or perception was.


2)[EM SPACE]A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.


I don’t know if there is a way to prove that Drejka didn’t reasonably believe he faced imminent death or great bodily injury.

In this case force was met with deadly force and it seems its perfectly legal in Florida.


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Re: This is not what "stand your ground" is supposed to be for

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For those of you that have atually watched the entire Sheriff's press conference video. How far away was McGlockton when he was shot?

It appears to me that he was standing at the feet of Drejka when he drew. McGlockton takes about one and a half steps back.

It looks to me that McGlockton was about his body height away from Drejka, so I'd say at most 6 feet.

Anyone else care to venture an estimate?

Re: This is not what "stand your ground" is supposed to be for

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NoEyeDeer wrote: Fri Jul 27, 2018 12:42 pm For those of you that have atually watched the entire Sheriff's press conference video. How far away was McGlockton when he was shot?

It appears to me that he was standing at the feet of Drejka when he drew. McGlockton takes about one and a half steps back.

It looks to me that McGlockton was about his body height away from Drejka, so I'd say at most 6 feet.

Anyone else care to venture an estimate?
I think your estimate is good.
Image

Re: This is not what "stand your ground" is supposed to be for

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hondo2K0 wrote: Tue Jul 24, 2018 8:29 am
Evo1 wrote: Mon Jul 23, 2018 11:55 pm
hondo2K0 wrote: Mon Jul 23, 2018 10:52 pm
YankeeTarheel wrote: Mon Jul 23, 2018 10:24 pm A strange man gets in your GF's or wife's face, you're going to put him down. Yes, parking in a HC spot is a dick move. But there was no threat to Drejka's life and his SYG defense is bullshit.
Nope, I shall tell him first to get lost and if anybody is going to shoot him it is going to be my wife it is easier for her to verbalize feeling of being in fear for her life and lives of our children. As soon as I put my hands on obnoxious prick first, I became the aggressor and I forfeited my life and well being as they are now defending themselves, even if person provoked an initial confrontation they are still entitled on self-defense as long as their actions were nonphysical.


Was there a threat to Drejka's life or not is subjective as far as I am concerned if somebody struck you so violently that you fall to the ground and in this case attacker blindsided him as it can be seen in the video, a reasonable person has every reason to be in fear for their life as person who hits you once most likely is going to keep hitting you . Expecting for somebody who already acted violently to stop after the first hit is stupid. But as I always tell people:" Feel free to let somebody to use you as a punching bag, just do not expect me to the same."

If Drejka called cops McGlockton would be arrested and charged with assault.
McGlockton failed to learn a simple lesson that any of us taught our kids around age 3-6:"We talk with our words, not our hands and feet, we use our hands and feet to convey message only to those who use their hands and feets instead words to talk"
At the moment he pulled the trigger, there was not an imminent threat to his life, which is what SYG requires. He pushed him to the ground (he shoved him, not punched him, and it doesn't take much to do that if you catch someone off guard), then stepped back and started turning away. Yes, McGlockton assaulted him, but self-defense isn't the same thing as revenge. You don't get to shoot someone to get even. You don't even get to shoot them just because you think he might hurt you later. There has to be a continuing imminent threat of death or great bodily harm, or at least the reasonable belief that such is the case. Simply standing several feet away after having shoved someone doesn't present such a threat. You might be afraid that the guy could continue his assault (though it's unlikely if you're holding a gun on him), but that's not an imminent threat, which is what Florida law requires, and any belief that he might renew his assault is speculative at best, not a reasonable belief, unless he's telegraphing his intent to do so.

Watch the video - McGlockton steps back and turns away slightly, the opposite of a threatening move, and only then does Drejka shoot him. He had time to see that pulling his gun had stopped the assault, which legally ends McGlockton's role as aggressor. Then he decided to shoot. As the sheriff even pointed out, there was a "troubling" delay between pulling the gun and pulling the trigger. Pointing a gun at someone is also assault, and a felony assault at that if not justified. If that assault stops the initial aggressor, you've ended the threat. The fact that Drekja took long enough to make that assessment before he shot, and McGlockton made no threatening move in between, means that Drejka became the aggressor when he fired. While he might have been in reasonable fear for his life at the moment he pulled his gun, he didn't shoot then. He waited until McGlockton stepped back and turned, which removed the imminent component of fear required by SYG.

Was McGlockton wrong to turn the incident physical? Of course. That's just idiotic macho bullshit, and a crime (although only a misdemeanor). But was he presenting an imminent threat to Drejka's life at the moment the trigger was pulled? Not even remotely. This was murder, plain and simple.
In the real world, showing and pushing by the reasonable standard is placing an open hand on to somebodies person and moving them out of your personal space no further than the fully extended arm. McGlockton struck Drejka using speed as he runs up to him, two-handed strike using full force and all body strength for that reason Drejka went flying before he landed on the pavement.
If McGlockton ran away, drove away or was subdued and unable to continue attack then Drejka would be guilty as McGlocton took none of those steps , he was a threat to Drejka , he was towering over him and could commence attack in a blink of the eye.
Totally of the facts is what matters in eyes of the law, Drejka pulled a gun and McGlocton did nothing to show that he is no longer the threat.
Is it a misdemeanor? It depends on Drejka's injuries. Hitting somebody with a closed fist in the chest is simple assault, hitting somebody in the head is a disregard for human health and life and if they lost consciences even for a sec it is aggravated assault.
People need to learn do not put paws on the other people, it can get you killed.
On the other note, your average cop deals with 3 to 5 obnoxious, loud and argumentative people like Drejka every day.
He shoved him. Just because he shoved him hard with both hands and put his weight behind it doesn't make it anything other than a shove. And yes, it's a misdemeanor. Your characterization of aggravated assault is incorrect. Under Florida law, aggravated assault is assault with a deadly weapon (which Drejka committed when he pulled his gun and pointed it), or assault with intent to commit a felony. All other assault is simple assault, and is a misdemeanor http://www.leg.state.fl.us/statutes/ind ... 4.021.html.

However, even if he had sucker-punched him in the head (which would still be simple assault), this is still not legal self defense for the use of deadly force. You're using the wrong standard, the fake one promulgated by the anti crowd, for assessing what is legal under Florida law. The fact that McGlockton was a potential threat is not enough under the law. SYG does not lower the standard for self defense that has always existed in Florida and pretty much everywhere else in the US. This is a mischaracterization created by anti groups after the law passed to try to discredit it. All SYG did was to formalize the fact that you do not have a duty to retreat, and provide for protections from prosecution if, and only if the act met the already existing standard for justifiable self-defense. No change to that standard was made.

And under that standard, you have to have more than just a fear of injury or death, and the threat has to be more than just possible or even likely. The standard for self defense that has existed for decades through the entire US, and is still the legal standard in Florida, is that you have to believe that the threat of death or serious physical injury is imminent, you have to believe that lethal force is necessary to prevent the imminent threat, and that belief has to be reasonable. See Florida statute 776.012(2) http://www.leg.state.fl.us/statutes/ind ... 6.012.html.

Drejka's actions failed to meet this standard on all three points. First, while McGlackton could have reinitiated his attack, he wasn't making any moves to do so. He was, in fact, moving back, which signals disengagement. So there was no imminent threat (google the legal meaning of imminent if you disagree*). Second, the use of lethal force was not necessary to stop the threat. McGlockton was already stepping back at the mere threat of lethal force. Unless he started telegraphing an intent to reengage, that threat was already sufficient, which Drejka paused long enough to see, and so lethal force wasn't necessary. And third, given that McGlockton did step back, even if Drejka believed there was still an imminent threat, that belief wasn't reasonable. The sheriff in this case simply failed to do his duty, whether because he is ignorant of the law (wouldn't be the first LEO, or especially CLEO, that's true of), or because he is intentionally mischaracterizing it for political reasons (which is also extremely common). He had clear probable cause to arrest and charge Drejka for criminal homicide, because it wasn't reasonable to believe that there was an imminent threat or that lethal force was necessary to stop it.

Yes, you're right, people need to learn that escalating a disagreement to any level of physical violence is unacceptable. But to abuse reasonable self defense laws by completely misinterpreting them so as to allow vigilante justice, which is what claiming Drejka was even remotely not in the wrong is doing, not only won't teach that lesson, it will ultimately cause those reasonable laws to be overturned.

*To illustrate how this case does not meet the legal standard of 'imminent threat' or 'necessary to prevent' under Florida law, consider how this situation differs from the Travon Martin case. In that case, Martin (according to all available evidence - don't want to argue all the BS conjecture over that) was in the act of slamming Zimmerman's head against the concrete. At that point, serious physical injury was imminent, as in immediate, right now, not simply suppositional or possible at some moment in the future. Florida law explicitly requires that the threat be imminent, not merely possible in the future even in the very near future. Also, Zimmerman was struggling with Martin, and was not apparently not able to stop himself from being physically assaulted by his own strength, and so firing his weapon was arguably necessary to stop the attack. Contrast this with this case - McGlockton was standing several feet away, and had taken a step back and started to turn away (there was another car behind him, so he couldn't keep going back). So, even though his position might have been somewhat threatening, that threat wasn't imminent. At the same time, Drejka already had his gun pointed directly at McGlockton. Had McGlockton started to reengage (which he didn't, making lethal force unnecessary), Drejka had plenty of time and reaction space to use lethal force to stop him. He was under no imminent threat, and lethal force wasn't necessary to prevent his own death or serious physical injury. He was either just scared and reacting out of fear of a potential threat, or he was angry and decided to get his own blow in. Either way, his action clearly did not meet the standard for self defense under Florida law. He committed murder.

Re: This is not what

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Chuck64 wrote: Fri Jul 27, 2018 12:35 pm2)[EM SPACE]I don’t know if there is a way to prove that Drejka didn’t reasonably believe he faced imminent death or great bodily injury.

In this case force was met with deadly force and it seems its perfectly legal in Florida.
Yes, there is a way to prove that he didn't reasonably believe this. People often either misunderstand, or completely ignore, that word "reasonable", which is very important legally. That standard, unlike what so many (including the sheriff) seem to believe, is not a subjective judgement by the accused's state of mind, but a legal standard based on what is objectively reasonable given the circumstances. When it says that the belief must be reasonable, it means that any reasonable person in the same situation would come to the same conclusion, not simply that the accused believed it.

Consider this: let's say that you are a 90 year old disabled shut in little old lady who lives in a bad neighborhood. One late afternoon you hear someone outside your house, walking around. You hear them come up to your door, and make some noises like they're doing something against the door or door jamb. You believe that they are trying to break in. Is that a reasonable belief? Is it reasonable enough to justify shooting them through the door (which is legal in many states if someone is trying to break in)?

The answer is no. What if it's the mailman and the noise you here is him trying to hide a package behind your flower pot before he rings your doorbell and walks off? Just because there is a very real possibility that it could be a burglar, and just because her frail condition makes her more fearful, it's not reasonable to jump to that conclusion and initiate the use of deadly force in self defense.

Likewise, even if Drejka actually believed his life was in danger, that belief wouldn't rise to the level required by Florida law (which, by the way, is no different than the self defense law in virtually every other state, or self defense laws in general in the US for over 100 years). Your belief has to meet 3 standards under Florida law: You have to believe the threat is imminent (which means right this moment, not even in a few seconds), you have to believe that lethal force is necessary to stop it, and you belief has to be reasonable - in other words, it can't like the little old lady's above, just be possible. As you pointed out, McGlockton started backing away immediately as soon as Drejka pulled his gun, and he was already several feet away before he did. At that point there was no imminent threat, lethal force wasn't necessary to stop the threat, since the mere pointing of the gun had already stopped it, at least temporarily, and to believe that there was an imminent threat that could only be stopped by lethal force wasn't a *reasonable* belief. What he did was definitely not legal under Florida law. People have simply bought into the fake media characterization of Florida law as somehow more permissive than the laws of other states. You have the text of the law above, and if you compare it to the self defense laws of any other state, you'll see that it is not. The media simply doesn't like guns or laws that allow their use, and so they've completely concocted a totally false image of Florida law.

Re: This is not what "stand your ground" is supposed to be for

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Evo1 wrote: Fri Jul 27, 2018 6:22 pm Either way, his action clearly did not meet the standard for self defense under Florida law. He committed murder.
Huh. Something doesn't seem to fit, then. This from long-time self-defense attorney Branca. I linked to it a couple of pages back. He evaluates the facts of the case as currently known against the five-part test of self-defense.

https://www.patreon.com/posts/cotw-florida-20318837
Innocence: Arguably Points to Self-Defense

The element of innocence asks, “who was the initial aggressor?”, that is, who is the first person to threaten or use force against another? In this case the initial aggressor is the victim, when he violently shoved the shooter to the ground. Although the shooter may have been acting imprudently and obnoxiously in scolding the girlfriend, non-threatening words do not constitute an act of physical aggression. So, the innocence element is arguably in favor of the shooter.

It has been asked whether it can’t be argued that the shooter’s scolding of the girlfriend provoked the attack by the victim, thus making the shooter the provoker of this event, and losing the shooter innocence and therefore self-defense.

The shooter, however, had no knowledge of the victim’s presence until the victim attacked him. It could not, then, have been foreseeable that the shooter’s conduct would result in the victim’s attack upon him. (In contrast, provocation may have been an issue to consider had the girlfriend, the target of the scolding, rather than the victim, attacked the shooter.)

The shooter could not have provoked the victim’s attack in any meaningful meaning of “provoke,” however, because he never interacted with the victim prior to the victim attacking him.

Imminence: Arguably Points to Self-Defense

Imminence asks whether the victim had the ability to cause harm, the opportunity to do so, and conducted himself in a manner from which a reasonable person would infer that he intended to cause harm. Here the boyfriend, standing looming over the shooter, clearly had the ability and opportunity to cause harm, and his conduct in violently throwing the shooter to the ground constituted jeopardy. Even after seeing the gun, although the victim shuffled back a step or two, he did not make a clear effort to retreat from the conflict, but remained facing the shooter. So, the defendant’s case arguably meets the requirements of imminence.

It has been asked whether the victim’s step or two back, upon seeing the gun, indicated that he was no longer an imminent threat to the shooter. The difficulty with this view is that the victim’s couple of steps back, where he then remained within a few feet of the shooter in a position from which he could renew his attack, is not an unequivocal retreat from the confrontation. Another witness in the video, wearing a blue shirt, makes a much more substantive movement away from the area near the bottom of the screen. Given the victim’s relatively modest stepping back, while remaining positioned to continue his assault, it’s not hard to believe that the shooter would have reasonably inferred that renewing the attack was being contemplated by the victim.

It has also been asked whether the victim declining to flee was not a reasonable decision on his part, given that his girlfriend and children were right there in the vehicle beside him. I would certainly concur that this is so, but for the purposes of determining whether the shooter’s of use-of-force was justified, the fact that the victim might have been acting in a subjectively reasonable way simply doesn’t matter.

The only state of mind that matters is the reasonable perception of the shooter, who in any case did not know that of the relationship between the victim and the woman he’d been scolding and the children with her.

It is irrelevant whether the victim’s decision to remain within striking distance of the shooter was subjectively reasonable for reasons unknowable to the shooter. What matters is whether the victim’s decision to remain within striking distance of the shooter could be reasonably perceived by the shooter as an imminent threat.

Proportionality: Arguably Points to Self-Defense

In terms of proportionality, what’s relevant is whether the shooter faced a deadly force threat, because that’s what would be required to justify the shooter’s use of a deadly firearm. It’s important to keep in mind that a deadly force threat includes not merely force capable of causing death, but also force capable of causing serious bodily injury.

Importantly, the violent throw to the ground alone isn’t enough —by the time the shooter has his gun out, that throw to the ground was in the past, and he can’t justify the use of deadly force because of some past use of force against him. A pretty good indication that you’re about to have force inflicted upon you, however, is that someone just did so a moment ago, and is hovering threateningly with the capability to inflict even more force. It’s that additional aggressive force against which the shooter would be justified in defending himself.

Was it reasonable for the defender to infer from the shove that he was in imminent danger of being kicked or stomped while on the ground, acts that can clearly cause serious bodily injury? I suppose reasonable people can disagree, but keep in mind that the legal standard will be that the prosecution must disprove the shooter’s fear beyond a reasonable doubt. On that basis, and given the victim’s vicious initial attack, I expect it would not be hard for a jury to conclude that in the 1.5 seconds or so the shooter had to make his decision, it was not unreasonable for him to conclude he was in imminent danger of serious bodily harm. So, proportionality is arguably in favor of the defendant.

Avoidance: Arguably Points to Self-Defense

In terms of avoidance, Florida is a Stand-Your-Ground state, so the shooter had no legal duty to retreat. But that’s irrelevant, because a duty to retreat only ever exists when it is possible to retreat with complete safety. One is not required to increase their jeopardy in order to get away. Having been thrown violently to the ground, with his attacker hovering menacingly over him, there was no reasonable means of safe retreat. If there was no means of safe retreat, there is no duty to retreat, and Stand-Your-Ground can play no role in relieving a duty that does not exist. So, avoidance is not a relevant element to the case.

Reasonableness: Arguably Points to Self-Defense

In terms of reasonableness, this can be thought of as an umbrella element that hovers over the prior four elements. In this case there’s no dispute who was the initial aggressor, and there was no realistic possibility of safe retreat, so reasonableness is checked off for those two elements. As for the remaining elements of imminence and proportionality, was it reasonable for the shooter to perceive an imminent threat of serious bodily injury at the moment he presented his gun and fired the single shot? On these facts it would seem possible, but not likely, that a jury could be unanimously convinced, beyond a reasonable doubt, that the shooter did not have a reasonable fear of imminent serious bodily harm. So reasonableness arguably favors the defense.

Bottom-Line: Unlikely to Disprove Self-Defense Beyond a Reasonable Doubt

Re: This is not what "stand your ground" is supposed to be for

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AndyH wrote: Fri Jul 27, 2018 7:09 pm
Evo1 wrote: Fri Jul 27, 2018 6:22 pm Either way, his action clearly did not meet the standard for self defense under Florida law. He committed murder.
Huh. Something doesn't seem to fit, then. This from long-time self-defense attorney Branca. I linked to it a couple of pages back. He evaluates the facts of the case as currently known against the five-part test of self-defense.

https://www.patreon.com/posts/cotw-florida-20318837
Innocence: Arguably Points to Self-Defense

The element of innocence asks, “who was the initial aggressor?”, that is, who is the first person to threaten or use force against another? In this case the initial aggressor is the victim, when he violently shoved the shooter to the ground. Although the shooter may have been acting imprudently and obnoxiously in scolding the girlfriend, non-threatening words do not constitute an act of physical aggression. So, the innocence element is arguably in favor of the shooter.

It has been asked whether it can’t be argued that the shooter’s scolding of the girlfriend provoked the attack by the victim, thus making the shooter the provoker of this event, and losing the shooter innocence and therefore self-defense.

The shooter, however, had no knowledge of the victim’s presence until the victim attacked him. It could not, then, have been foreseeable that the shooter’s conduct would result in the victim’s attack upon him. (In contrast, provocation may have been an issue to consider had the girlfriend, the target of the scolding, rather than the victim, attacked the shooter.)

The shooter could not have provoked the victim’s attack in any meaningful meaning of “provoke,” however, because he never interacted with the victim prior to the victim attacking him.

Imminence: Arguably Points to Self-Defense

Imminence asks whether the victim had the ability to cause harm, the opportunity to do so, and conducted himself in a manner from which a reasonable person would infer that he intended to cause harm. Here the boyfriend, standing looming over the shooter, clearly had the ability and opportunity to cause harm, and his conduct in violently throwing the shooter to the ground constituted jeopardy. Even after seeing the gun, although the victim shuffled back a step or two, he did not make a clear effort to retreat from the conflict, but remained facing the shooter. So, the defendant’s case arguably meets the requirements of imminence.

It has been asked whether the victim’s step or two back, upon seeing the gun, indicated that he was no longer an imminent threat to the shooter. The difficulty with this view is that the victim’s couple of steps back, where he then remained within a few feet of the shooter in a position from which he could renew his attack, is not an unequivocal retreat from the confrontation. Another witness in the video, wearing a blue shirt, makes a much more substantive movement away from the area near the bottom of the screen. Given the victim’s relatively modest stepping back, while remaining positioned to continue his assault, it’s not hard to believe that the shooter would have reasonably inferred that renewing the attack was being contemplated by the victim.

It has also been asked whether the victim declining to flee was not a reasonable decision on his part, given that his girlfriend and children were right there in the vehicle beside him. I would certainly concur that this is so, but for the purposes of determining whether the shooter’s of use-of-force was justified, the fact that the victim might have been acting in a subjectively reasonable way simply doesn’t matter.

The only state of mind that matters is the reasonable perception of the shooter, who in any case did not know that of the relationship between the victim and the woman he’d been scolding and the children with her.

It is irrelevant whether the victim’s decision to remain within striking distance of the shooter was subjectively reasonable for reasons unknowable to the shooter. What matters is whether the victim’s decision to remain within striking distance of the shooter could be reasonably perceived by the shooter as an imminent threat.

Proportionality: Arguably Points to Self-Defense

In terms of proportionality, what’s relevant is whether the shooter faced a deadly force threat, because that’s what would be required to justify the shooter’s use of a deadly firearm. It’s important to keep in mind that a deadly force threat includes not merely force capable of causing death, but also force capable of causing serious bodily injury.

Importantly, the violent throw to the ground alone isn’t enough —by the time the shooter has his gun out, that throw to the ground was in the past, and he can’t justify the use of deadly force because of some past use of force against him. A pretty good indication that you’re about to have force inflicted upon you, however, is that someone just did so a moment ago, and is hovering threateningly with the capability to inflict even more force. It’s that additional aggressive force against which the shooter would be justified in defending himself.

Was it reasonable for the defender to infer from the shove that he was in imminent danger of being kicked or stomped while on the ground, acts that can clearly cause serious bodily injury? I suppose reasonable people can disagree, but keep in mind that the legal standard will be that the prosecution must disprove the shooter’s fear beyond a reasonable doubt. On that basis, and given the victim’s vicious initial attack, I expect it would not be hard for a jury to conclude that in the 1.5 seconds or so the shooter had to make his decision, it was not unreasonable for him to conclude he was in imminent danger of serious bodily harm. So, proportionality is arguably in favor of the defendant.

Avoidance: Arguably Points to Self-Defense

In terms of avoidance, Florida is a Stand-Your-Ground state, so the shooter had no legal duty to retreat. But that’s irrelevant, because a duty to retreat only ever exists when it is possible to retreat with complete safety. One is not required to increase their jeopardy in order to get away. Having been thrown violently to the ground, with his attacker hovering menacingly over him, there was no reasonable means of safe retreat. If there was no means of safe retreat, there is no duty to retreat, and Stand-Your-Ground can play no role in relieving a duty that does not exist. So, avoidance is not a relevant element to the case.

Reasonableness: Arguably Points to Self-Defense

In terms of reasonableness, this can be thought of as an umbrella element that hovers over the prior four elements. In this case there’s no dispute who was the initial aggressor, and there was no realistic possibility of safe retreat, so reasonableness is checked off for those two elements. As for the remaining elements of imminence and proportionality, was it reasonable for the shooter to perceive an imminent threat of serious bodily injury at the moment he presented his gun and fired the single shot? On these facts it would seem possible, but not likely, that a jury could be unanimously convinced, beyond a reasonable doubt, that the shooter did not have a reasonable fear of imminent serious bodily harm. So reasonableness arguably favors the defense.

Bottom-Line: Unlikely to Disprove Self-Defense Beyond a Reasonable Doubt
I disagree on a couple of points:
Given the victim’s relatively modest stepping back, while remaining positioned to continue his assault, it’s not hard to believe that the shooter would have reasonably inferred that renewing the attack was being contemplated by the victim.
Okay, but inferring "that renewing the attack was being contemplated by the victim" is very different than having a reasonable belief that such an attack is imminent. Okay, *maybe* he is contemplating renewing his attack. That's one possibility for which Drejka had no evidence to believe over the other possibility, that he would have kept retreating had he not been shot. Imminent threat isn't, 'well, he might come back at me.' Branca also frequently uses the phrase "hovering menacingly over him" to try to also claim imminence. But he himself says that McGlockton takes a couple of steps back, from a position that was already several feet away from Drejka, so he wasn't remotely "hovering menacingly over him," which conjures the image of McGlockton standing directly over him with clenched fists. Branca's a defense attorney; he's prone to such hyperbole. He also wasn't "in striking distance of the shooter" when the shot was fired, for the same reason. He was far enough away that Drejka had plenty of reaction space to fire if he were to start back toward him, even if he charged.
keep in mind that the legal standard will be that the prosecution must disprove the shooter’s fear beyond a reasonable doubt
No, the prosecution simply has to prove that the shooter's belief wasn't reasonable given the circumstances, not that he didn't have that belief. Being afraid isn't enough under the legal standard. See my example of the little old lady in my post above.

Finally, he never addresses the third element of self defense that is explicitly written into the law: necessity. Was it necessary to pull the trigger to stop the threat, or was it at least reasonable to believe that it was necessary? I think the facts already mentioned show that it was neither necessary nor reasonable to believe that it was. Was it expedient? Yes. Was it necessary? No. McGlockton's movement toward him not only stopped, but reversed (even if not as much as Branca would have liked to see) with the mere threat of lethal force, which, again, Drejka had enough time to assess before he pulled the trigger. At that point, lethal force was no longer necessary, nor can it be said to be reasonably believed to be necessary.

It's also important to realize that looking at each element in isolation creates a type of reductionism that distorts the important question. If you look at the whole law, what it says is 'was it reasonable to believe that lethal force was necessary save your life.' I don't think anyone watching that video could reasonably make that argument. Otherwise virtually every physical fight would justify lethal force, given that as soon as someone throws a punch, you could make all the same arguments that Branca does.

At least he admits that it is reasonable to disagree on most of his points, and clearly I do.

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All that matters would prosecutor cop judge perceived under same circumstances that their life or health are in danger
According to sheriff he has same perception as drejka had
if 21 year old standing 30 feet from you armed with baseball bat telling you I am going to beat you perceiving him as Threat to your life is reasonable but if 90 year-old grandma armed with Kane telling you I am going to beat you as soon as I get up from the bed and you standing 7 feet from her your life is not in danger as she is not capable of carry out such threat

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hondo2K0 wrote: Fri Jul 27, 2018 9:14 pm It is all about perception somebody hit you and we do not hear audio so we do not know what was said
As far as assault if victim lost consciousness even for sec it is aggravated assault if you touch person,s throat it is aggravsted assault reasonable persons are judge prosecutor cop everybody else is common person as they are not versed in theory and applications of the law
Nope, that is not aggravated assault under Florida law - not even close. http://www.leg.state.fl.us/statutes/ind ... 4.021.html Aggravated assault requires either the use of a deadly weapon or assault in furtherance of a felony. The damage caused is irrelevant.

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hondo2K0 wrote: Fri Jul 27, 2018 9:20 pm All that matters would prosecutor cop judge perceived under same circumstances that their life or health are in danger
According to sheriff he has same perception as drejka had
if 21 year old standing 30 feet from you armed with baseball bat telling you I am going to beat you perceiving him as Threat to your life is reasonable but if 90 year-old grandma armed with Kane telling you I am going to beat you as soon as I get up from the bed and you standing 7 feet from her your life is not in danger as she is not capable of carry out such threat
The law doesn't allow self defense merely because you fear your life or health is in danger. It requires that you have a reasonable belief that you have no other choice but to use lethal force in order to avoid such danger. Unless you can say "I had no other choice," then the use of lethal force isn't justified under Florida law, except that with SYG running away isn't a required choice. I don't think anyone watching the video can credibly claim that Drejka had no choice but to shoot, or that anyone would reasonably believe that.

The problem is that all the anti propaganda has everyone believing that Florida law is somehow just a set of boxes you need to check: am I afraid for my life (not a requirement at all)?; do I believe there is an imminent threat?; and if you meet some minimum number of boxes checked, you can shoot. That's not how it works. The law says that you have to have a reasonable belief that lethal force is necessary, not merely allowable.

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The shooter was on the ground after being knocked down flat. The aggressor was well within 21 feet (Tueller drill, anyone?) and probably within 6-7 feet. The attacker had the ability to kill or cripple, had the opportunity, and it was clear the shooter was still in jeopardy. There was a significant disparity of force due to age, and size, and strength, and body position. In that situation, the reasonable and prudent person would be in fear.

Branca's a practicing attorney that specializes in self-defense. He's got more than 30 years experience in the trenches, and teaches and writes about self-defense law in all 50 states. I'm going to give his view plenty of credibility until someone with a whole lot more experience comes along.
Last edited by AndyH on Fri Jul 27, 2018 11:47 pm, edited 2 times in total.

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Evo1 wrote: Fri Jul 27, 2018 10:21 pm
hondo2K0 wrote: Fri Jul 27, 2018 9:20 pm All that matters would prosecutor cop judge perceived under same circumstances that their life or health are in danger
According to sheriff he has same perception as drejka had
if 21 year old standing 30 feet from you armed with baseball bat telling you I am going to beat you perceiving him as Threat to your life is reasonable but if 90 year-old grandma armed with Kane telling you I am going to beat you as soon as I get up from the bed and you standing 7 feet from her your life is not in danger as she is not capable of carry out such threat
The law doesn't allow self defense merely because you fear your life or health is in danger. It requires that you have a reasonable belief that you have no other choice but to use lethal force in order to avoid such danger. Unless you can say "I had no other choice," then the use of lethal force isn't justified under Florida law, except that with SYG running away isn't a required choice. I don't think anyone watching the video can credibly claim that Drejka had no choice but to shoot, or that anyone would reasonably believe that.

The problem is that all the anti propaganda has everyone believing that Florida law is somehow just a set of boxes you need to check: am I afraid for my life (not a requirement at all)?; do I believe there is an imminent threat?; and if you meet some minimum number of boxes checked, you can shoot. That's not how it works. The law says that you have to have a reasonable belief that lethal force is necessary, not merely allowable.
We'll drejka believed that his lifewas in danger detectives and sheriff disagree with you they seen all of the evidence and concluded drejka had reason to
reasonably believe that his life is in danger

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AndyH wrote: Fri Jul 27, 2018 11:19 pm Evo1 - Branca's a practicing attorney that specializes in self-defense. He's got more than 30 years experience in the trenches, and teaches and writes about self-defense law in all 50 states. I'm going to give his view plenty of credibility until someone with a whole lot more experience comes along.
I'm not arguing his credentials. But he completely disregarded the primary requirement under Florida law, which is necessity. He spends a lot of time trying to make a case (using loaded hyperbole) that a belief in an imminent threat is reasonable. First, if we take away exaggerated statements like "hovering menacingly over him," which he wasn't (moving back and turning away is not "hovering", nor is it "menacing", and being a good 6-8 feet away isn't "over him"), then I disagree that belief in imminence is reasonable. And he admits that it's debatable, even with his hyperbole. He's pitching it the way he'd defend it, but the prosecution, if its any good, would rebut him just as I am.

But notice that Florida law doesn't require a reasonable belief that a threat is imminent. That's a lawyer's distraction. The law requires a reasonable belief that lethal force is necessary; not optional, not acceptable, not expedient, but necessary. There has to be a reasonable belief that you have no other choice (except to try to flee, which SYG takes care of). Here, again, is the relevant text of the Florida law: http://www.leg.state.fl.us/statutes/ind ... 6.012.html
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
If the circumstances don't support a reasonable belief that you had no choice but to use lethal force, then it doesn't matter if you believe there is an imminent threat or not, so all that time he spends trying to make a case for such a belief is irrelevant. It is, again, a lawyer's distraction. He's previewing how he would defend the case, but in doing so he's intentionally ignoring the actual wording of the law, and it's primary requirement, because that would damage his hypothetical defense. He talks about proportionality, which is certainly often relevant in self-defense cases, but which, like fear, is not at all a part of Florida law. He talks about avoidance, which he admits is irrelevant in this case (so it actually isn't an SYG case at all, just like Travon Martin). He talks about innocence, and, from what we see, he's correct, McGlockton was the initial aggressor, although I'd argue that he was trying to disengage when he was shot. And he discusses reasonableness, which, as he says, is really just a combination of the other four elements he talks about. But Florida law either doesn't require these four elements, or makes them subordinate to the one element he never addresses, which is necessity. It's clearly and explicitly the primary requirement in the above text. All the prosecutor has to do is prove beyond a reasonable doubt that, at the moment he pulled the trigger, it wasn't reasonable to believe that killing McGlockton was absolutely necessary to keep him from seriously injuring Drejka. If they can do that, they convict, and everything else that Branca discusses becomes irrelevant.

I would agree that when he pulled his gun, it was reasonable for him to believe that threat of lethal force was necessary, because McGlockton was still moving toward him and was close. But McGlockton then stepped back and started to turn away before Drejka fired, so that when he pulled the trigger, the actual use lethal force wasn't necessary, and it wasn't reasonable to believe that it was. Watch the video and put yourself in Drejka's place at the moment he pulled the trigger, then ask yourself if you would have believed, at that moment, that you had no other choice but to shoot. That you couldn't, for example, keep pointing your gun at him and order him back while you gained your feet. Unless the answer is 'yes', then I think Branca's wrong, and it won't be that hard at all to prove it wasn't legal self defense beyond a reasonable doubt.
Last edited by Evo1 on Sat Jul 28, 2018 12:44 am, edited 2 times in total.

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hondo2K0 wrote: Fri Jul 27, 2018 11:34 pm
Evo1 wrote: Fri Jul 27, 2018 10:21 pm
hondo2K0 wrote: Fri Jul 27, 2018 9:20 pm All that matters would prosecutor cop judge perceived under same circumstances that their life or health are in danger
According to sheriff he has same perception as drejka had
if 21 year old standing 30 feet from you armed with baseball bat telling you I am going to beat you perceiving him as Threat to your life is reasonable but if 90 year-old grandma armed with Kane telling you I am going to beat you as soon as I get up from the bed and you standing 7 feet from her your life is not in danger as she is not capable of carry out such threat
The law doesn't allow self defense merely because you fear your life or health is in danger. It requires that you have a reasonable belief that you have no other choice but to use lethal force in order to avoid such danger. Unless you can say "I had no other choice," then the use of lethal force isn't justified under Florida law, except that with SYG running away isn't a required choice. I don't think anyone watching the video can credibly claim that Drejka had no choice but to shoot, or that anyone would reasonably believe that.

The problem is that all the anti propaganda has everyone believing that Florida law is somehow just a set of boxes you need to check: am I afraid for my life (not a requirement at all)?; do I believe there is an imminent threat?; and if you meet some minimum number of boxes checked, you can shoot. That's not how it works. The law says that you have to have a reasonable belief that lethal force is necessary, not merely allowable.
We'll drejka believed that his lifewas in danger detectives and sheriff disagree with you they seen all of the evidence and concluded drejka had reason to
reasonably believe that his life is in danger
The sheriff is misreading the law. It doesn't matter if he reasonably believed his life was in danger. That's only a small part of the requirement. The main requirement of the law is that you have no other choice but to use lethal force. The sheriff himself has questioned that, but because he's confused about the law (or is intentionally playing political games with it), he's not saying that Drejka can't be charged, he's just saying he doesn't know and is handing it off to the state attorney to make the call. I've posted it already, but here is the law, again:
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
Notice it says nothing about believing that your life is in danger. It says that you must reasonably believe that lethal force is necessary, in other words, that you have no other choice but to try to kill someone to keep from being killed yourself. Watch the video again and tell me if you would believe that if you were in Drejka's situation at the moment he pulled the trigger, or if he clearly overreacted, and the reasonable belief is that he could probably hold McGlockton off by just continuing to point his gun at him and ordering him to back off.

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Evo1 presents very well the case a prosecutor would argue if charges were brought against Drejka. We have an adversarial system of justice (common law) and Branca would be the likely argument for the defense. This is different from the Zimmerman case as Evo1 pointed out but also because we have video of this shooting. The state's attorney can charge or not charge or as in the Zimmerman case, ask the state attorney general to handle it.
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

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There was an old M*A*S*H episode where Hawkeye gets pissed at a cold-blooded statistican, who then presses charges. While that's going on, the statistician gets wounded in the field and in recovery later says he's dropping charges because a push in a bar doesn't amount to much. That's what this was till Drejka turned it into a homicide. I hope he's charged.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

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Would this statute come into play?
Specifically section 2.
Justification not available to a person who provokes use of force against himself.
Did Drejka provoke the push to the ground because McGlockton felt threatened or fearful for his girlfriend and his other two kids in the back of the car.
So Drejka’s actions of whatever was said to the girlfriend could’ve been seen as a provocation that bought the push to the ground upon himself?


776.041[EM SPACE]Use or threatened use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1)[EM SPACE]Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2)[EM SPACE]Initially provokes the use or threatened use of force against himself or herself, unless:
(a)[EM SPACE]Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant; or
(b)[EM SPACE]In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force.


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Evo1 wrote: Sat Jul 28, 2018 12:08 am
AndyH wrote: Fri Jul 27, 2018 11:19 pm Evo1 - Branca's a practicing attorney that specializes in self-defense. He's got more than 30 years experience in the trenches, and teaches and writes about self-defense law in all 50 states. I'm going to give his view plenty of credibility until someone with a whole lot more experience comes along.
I'm not arguing his credentials. But he completely disregarded the primary requirement under Florida law, which is necessity. He spends a lot of time trying to make a case (using loaded hyperbole) that a belief in an imminent threat is reasonable. First, if we take away exaggerated statements like "hovering menacingly over him," which he wasn't (moving back and turning away is not "hovering", nor is it "menacing", and being a good 6-8 feet away isn't "over him"), then I disagree that belief in imminence is reasonable. And he admits that it's debatable, even with his hyperbole. He's pitching it the way he'd defend it, but the prosecution, if its any good, would rebut him just as I am.

But notice that Florida law doesn't require a reasonable belief that a threat is imminent. That's a lawyer's distraction. The law requires a reasonable belief that lethal force is necessary; not optional, not acceptable, not expedient, but necessary. There has to be a reasonable belief that you have no other choice (except to try to flee, which SYG takes care of). Here, again, is the relevant text of the Florida law: http://www.leg.state.fl.us/statutes/ind ... 6.012.html
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
If the circumstances don't support a reasonable belief that you had no choice but to use lethal force, then it doesn't matter if you believe there is an imminent threat or not, so all that time he spends trying to make a case for such a belief is irrelevant. It is, again, a lawyer's distraction. He's previewing how he would defend the case, but in doing so he's intentionally ignoring the actual wording of the law, and it's primary requirement, because that would damage his hypothetical defense. He talks about proportionality, which is certainly often relevant in self-defense cases, but which, like fear, is not at all a part of Florida law. He talks about avoidance, which he admits is irrelevant in this case (so it actually isn't an SYG case at all, just like Travon Martin). He talks about innocence, and, from what we see, he's correct, McGlockton was the initial aggressor, although I'd argue that he was trying to disengage when he was shot. And he discusses reasonableness, which, as he says, is really just a combination of the other four elements he talks about. But Florida law either doesn't require these four elements, or makes them subordinate to the one element he never addresses, which is necessity. It's clearly and explicitly the primary requirement in the above text. All the prosecutor has to do is prove beyond a reasonable doubt that, at the moment he pulled the trigger, it wasn't reasonable to believe that killing McGlockton was absolutely necessary to keep him from seriously injuring Drejka. If they can do that, they convict, and everything else that Branca discusses becomes irrelevant.

I would agree that when he pulled his gun, it was reasonable for him to believe that threat of lethal force was necessary, because McGlockton was still moving toward him and was close. But McGlockton then stepped back and started to turn away before Drejka fired, so that when he pulled the trigger, the actual use lethal force wasn't necessary, and it wasn't reasonable to believe that it was. Watch the video and put yourself in Drejka's place at the moment he pulled the trigger, then ask yourself if you would have believed, at that moment, that you had no other choice but to shoot. That you couldn't, for example, keep pointing your gun at him and order him back while you gained your feet. Unless the answer is 'yes', then I think Branca's wrong, and it won't be that hard at all to prove it wasn't legal self defense beyond a reasonable doubt.
I agree that the pieces weren't written very 'clinically'. I do, however, understand why he used 'hovering'. Put yourself on the ground. The guy that just knocked you on your ass is younger, stronger, and taller, and is looking down on your from 3 feet beyond the reach of his arm. He can take a single step and have hands on you again. How do you feel? (To get closer to beating a dead horse, do you grok the significance of the Tueller drill? 21 feet is 1.5 seconds - that's close enough for an attacker to have a knife in your chest just as you draw and get your finger on the trigger. 21 feet is 'mutually assured destruction' - anything closer than that is CQB where the aggressor can kill you with your own gun.) http://www.theppsc.org/Staff_Views/Tuel ... .Close.htm

I frankly doubt that Branca disregarded a primary requirement under Florida law. I also doubt that the overall structure of the Florida process is significantly different from the rest of the country. I recall Ohio being singled out for having some interesting kinks, but not Florida. Maybe I'm wrong about that. (I've just spent about 20 minutes looking for Branca's book. It's in this place somewhere. If I actually put it on a bookshelf as part of some misguided attempt to 'clean' I'll never see it again. :lol: )

If fear isn't part of Florida law, I wonder why it was brought up so many times in the Zimmerman trial?

Necessity/competing harms isn't a precursor to self defense. First, one has to be in a situation where they face death or great bodily harm. Then they have to make the decision to act or not. It's in the 'what do I do?' portion of the process where one decides that breaking the law is the best option. The 'AOC' and five requirements have to be met in order to qualify the first part (Am I in a self-defense situation?) before necessity becomes a factor. Since the story in the media is that the gun was excessive, it makes sense that he'd begin with the first part of the process. (ETA...hmmm...this probably isn't quite accurate. The media stuff is about 'stand your ground' - or at least that's the label they're applying to the entire process. Standing one's ground is also in 'part 2' - after determining that there's a threat. Also... I keep thinking about what I'd do if I found myself planted on the ground. It'll probably take about 1.5 seconds to draw and cover the threat. It would take me longer than that to get back on my feet. That means I'm subject to being 'dead' or 'great bodily harmed' from someone within 21 feet. As much as I'd want to get back on my feet to open up options, I can see why he went straight for the draw - it was his only tactical option.)

I don't think he's pitching it as he'd defend it. I wouldn't expect a skilled attorney to leave any open holes. As he's doing the same sort of 'armchair' thing we are, I give him credit for showing potential holes. He's educating, not litigating, I guess.

I'll buy the first round when we get together after the trial(s) to see how we did. :beer2:
Last edited by AndyH on Sun Jul 29, 2018 12:27 am, edited 1 time in total.

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hondo2K0 wrote: Sat Jul 28, 2018 11:55 am The video stops before drejka fires so what happened I don't know ,mcglokton was way to close and of took drejka 30 seconds to get up we don't know how hurth h he was mcglokton could run away after drejka pulled a gun out
Highdesert posted a link to a piece that has the full video. It's half-way down the page:
https://www.wtsp.com/article/news/local ... -576049770
highdesert wrote: Sun Jul 22, 2018 12:29 pm Raw video, looks like from a store camera of the incident released by Pinellas Co Sheriff. Again no sound.
https://www.wtsp.com/article/news/local ... -576049770
Here's just the video:

https://www.wtsp.com/video/news/raw-pin ... 67-8195620

And the Pinellas County Sheriff's presser. He said that neither man spoke.
https://twitter.com/SheriffPinellas/sta ... 8837964801

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