Saturday, July 21, 2018

Commentary On Some Recent Defensive Shootings

Obligatory Disclaimer: I'm not your attorney and this is in no way intended as legal advice. If you want legal advice, hire an attorney.

Over the last few days I have seen a few self-defense articles (with video showing the incidents) that I think are worth discussing:
        Defoe, police said, stole three 18-packs of Natural Ice beer from the store on Tuesday night and hopped into his Toyota Camry.
          Hasan and his 61-year-old father, who co-owns the store, witnessed Defoe take the beer. Hasan is seen on surveillance footage running toward a private area of the store, and returning with a handgun.
             Both Hasan and his father run after Defoe, but not before Hasan seemingly drops the gun and kicks it.
              Afterwards, security video appears to show Hasan pointing the gun directly into Defoe's car window and shooting as he backs up and drives away.
                 Some point after he was shot, Defoe crashed his car, the news station reported. He was transported to a hospital with gunshot wounds in his left arm and chest, and remains in critical condition.
                   Deputies said Defoe, who was recently released from prison, has a criminal history, which includes charges of robbery, domestic battery and drug possession.
                    Hasan has no criminal record.
                      As an initial matter, I would observe that "[u]nder Florida law, a person is justified in using deadly force in self-defense only when the person reasonably believes that such force is necessary to prevent one's imminent death or great bodily harm or to prevent the imminent commission of a forcible felony." Cruz v. State, 971 So. 2d 178, 182 (Fla. Dist. Ct. App. 2007). Interestingly, under Florida law, "the mere display of a gun, or even pointing a gun at another's head or heart without firing it, is not deadly force as a matter of law." Jackson v. State, 179 So. 3d 443, 446 (Fla. Dist. Ct. App. 2015). I don't know if any other states take that position. Even if it is not "deadly force," it would still constitute assault or violate a law prohibiting the brandishing of a weapon, so don't be waiving that gun about!
                      In any event, the facts are scarce, but it does not appear from this story or other news reports that I've read that Defoe used or displayed a weapon. He just walked into the store, grabbed the merchandise, and left without paying. 
                      It could be argued, from a tactical sense, that Hasan should not have chased after Defoe since he didn't know if Defoe was armed; Hasan could have easily been shot or stabbed by Defoe. But he was within his right to pursue Defoe and could have used the opportunity to get a photo of Defoe or get a license plate number. 
                      However, this is where Hasan makes his mistake that got him landed in jail, which is that he drew his firearm and shot Defoe. As noted above, the mere drawing of the firearm was not deadly force under Florida law, but Hasan actually fired on Defoe, not in self defense or defense of another, but in defense of property. The robbery was already committed, so, arguably, Hasan was not attempting to prevent a forcible felony. Moreover, because Defoe had not attacked or threatened to attack Hasan, he also arguably was not acting to prevent imminent death or great bodily harm. 
                       With property crimes, you need to remember Jack Handey's advice: "If you ever drop your keys into a river of molten lava, let 'em go, because man, they're gone." Same applies to stolen property in most locales--once the perp is running off with the stolen property, just let 'em go and call the police. 
                       Society is better off without someone like Defoe, but the law doesn't look at whether an act of self-defense benefits society. Rather, it looks at whether the use of force falls within a permitted exception to the state's monopoly on force (or the King's peace as it was referred to in British common law). When the adrenaline is flowing, it is hard to think and reason dispassionately, but that is what you need to try and do.
                       Cops said a driver of a BMW and two other men had been arguing on the road in Ormond Beach before they entered the same Sunoco branch and resumed the dispute. 
                        In the video, the two men appear to try to remove the BMW driver from his car by opening his door and reaching inside. 
                          The driver then moves forward, but the duo follow him and walk behind his car. 
                            He then reverses in their direction - with one of the men claiming his foot was run over. 
                              But the two men do not relent, and instead persist in standing in front of the car and pushing it.
                                At this point, the BMW drives right into one of the men, hitting him and forcing him onto the moving car's hood before braking and sending him flying into the tarmac.

                          * * *
                                     But cops said the driver of the car - who sped off after the video was recorded - was actually acting defensively.
                                      A police report explained: 'The video shows the male in the BMW acting in self defense and also identifies him as the victim in this incident.' 
                                       Cops also said they believe the BMW was followed into the station by the other men. 
                                          Speaking anonymously, the man who was hit by the BMW said the driver had cut him off and thrown things at his car.  
                                            The two men could face burglary and battery charges, police said. 
                                          There is a joke that goes substantially as follows:
                                    Q:  What's the difference between a BMW and a cactus?
                                    A:  The BMW has the prick on the inside.
                                    Anyway, whether or not the guy in the BMW was a prick, he probably was intending to terminate the dispute by pulling off the road and going into the business. The other two men, however, couldn't let it go. Their actions in trying to open the door of the vehicle and striking the vehicle could be viewed as acts in furtherance of the imminent commission of a forcible felony justifying the BMW driver's use of the vehicle in self-defense. It could be argued that the risk had dissipated after the driver back up the vehicle, but when you watch the whole video, it clear that the other men had not given up their intentions.
                                           Situations like this often lead to discussions of what could have been done to prevent it. Unfortunately, we don't know what happened before the altercation. Did the BMW actually cut them off in malicious manner (as opposed to negligently doing so). And the BMW driver appeared to have attempted to terminate the matter. I suppose he could have tried to calm the other's down by profusely apologizing or threatening to call the police, but it is all hypothetical--we don't know if the other two men would have been deterred. The other men could had done something, however, which was to just let the incident slide, but their egos wouldn't allow it.
                                    • The article in this case is: "Man who shot and killed motorist who shoved him to the ground in argument over handicapped parking spot 'won't be charged' because of Florida's controversial stand your ground laws"--Daily Mail. Another one from Florida! In this instance, the shooter was Michael Drejka. The aggressor was Markeis McGlockton. According to the article and what is shown in the video, McGlockton and his girlfriend pulled into a convenience store, parking in the handicapped parking spot. McGlockton then went into the store. Drejka then pulled into the store, got out of his car, and apparently noticed that McGlockton's car didn't have handicapped plates or tags, and decided to make some comments to McGlockton's girlfriend about it. Drejka was standing several feet away from the vehicle, so it was clear that he was not physically threatening McGlockton's girlfriend. But McGlockton came racing out of the store and violently shoved Drejka to the ground. Here is the problematic issue with this shooting in my mind, which is the McGlockton then took a step or two back from where Drejka lay on the pavement. Drejka, without getting up, then drew his firearm and shot McGlockton. 
                                            McGlockton's attack was clearly unjustified, and likely was due to the general attitude that "disrespecting" a black person is worthy of a violent response, since it is unlikely he could have heard what Drejka was saying to his girlfriend. This was not an incident involving "fighting words." Moreover, I would argue that in our world of concrete and asphalt, a shove to the ground that would have been mostly harmless on grass or soil, has become something capable of deadly result where one's head could strike the pavement or concrete. (I would remind readers that the use of paving combined with footware with rigid soles has completely changed the way humans walk--hard paving has completely altered the environment for which we evolved or were created).
                                            The question here is whether, when he drew his gun, Drejka was acting in self-defense, or if the attack had been terminated by McGlockton prior to Drejka using his firearm. If McGlockton had turned away from Drejka, I think that would be enough to suggest that the attack was terminated. But simply backing up a step or two? I suspect that if Drejka had gotten back up, McGlockton would probably have resumed his attack. But who knows?
                                            Here we have another conflict driven by ego and passion. Drejka probably could have avoided the whole thing by not getting upset about someone parking in the handicapped spot. After all, it didn't adversely impact him. Even if there were no handicapped tags visible, he couldn't have known if they had simply forgotten to hang the tag from the mirror, or if someone handicapped was using another person's vehicle. Or he might have taken a less aggressive manner, and just told the driver she shouldn't be parked there and left it at that.
                                            But, given McGlockton's reaction, even the latter option probably would still have resulted in Drejka being the victim of a battery by McGlockton. McGlockton could have chosen other means of intervening without physically attacking Drejka.
                                            This is a close call, which is what the Sheriff's statement seems to indicate. I might have drawn my firearm, but I'm pretty sure I would not have drawn and shot under the same circumstances. But given the sudden and unprovoked attack and the obvious disparity in size and strength, I can't say that Drejka was wrong. I can say, however, that he was lucky to have a sympathetic sheriff and/or prosecutor, because another sheriff or prosecutor might have decided to just let the jury sort it out.

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