Several prominent Florida Republicans have criticized Pinellas County Sheriff Bob Gualtieri's misrepresentation of that state's Stand Your Ground self-defense law in connection with the July 19 shooting of Markeis McGlockton. Three key legislators who had a hand in writing the law and the National Rifle Association lobbyist who helped get it passed told Politico that Gualtieri was simply wrong when he claimed the standard for using lethal force is "largely subjective."
That point is crucial in this case, because Michael Drejka told police he shot McGlockton, who had just shoved him to the pavement in the parking lot of a convenience store in Clearwater, because he was afraid the other man was bent on continuing the attack. Under Florida law, someone is justified in using lethal force if he "reasonably believes" it is "necessary to prevent imminent death or great bodily harm." Yet surveillance video of the incident, which began with a dispute over a handicapped parking spot, shows McGlockton backing away when Drejka draws his pistol.
At a press conference the day after the shooting, Gualtieri conceded that brandishing the gun "probably" would have sufficed to protect Drejka from further attack. But Gualtieri insisted that Florida's law prevented him from making an arrest, because "Stand Your Ground allows for a subjective belief by the person that they are in harm's way," and "we don't get to substitute our judgment for Drejka's judgment."
Not so, says the NRA's Marion Hammer, who lobbied Florida legislators to pass the Stand Your Ground law in 2005 and strengthen its protections for defendants in 2017. "Nothing in either the 2005 law or the 2017 law prohibits a Sheriff from making an arrest in a case where a person claims self-defense if there is probable cause that the use of force was unlawful," Hammer told Politico.
State Sen. Dennis Baxley, who sponsored the 2005 law, agreed. "Stand Your Ground uses a reasonable-person standard," he noted. "It's not that you were just afraid. It's an objective standard." State Sen. Rob Bradley, who sponsored the 2017 law, made the same point, as did state Rep. Bobby Payne, who sponsored the House version of the bill.
While Hammer, Baxley, and Bradley did not want to comment on the facts of the shooting, Payne suggested that Drejko's fear was not reasonable. "Based on what I saw in the video, the assertion of Stand Your Ground was weak, based on the victim's retreat or de-escalation of the event once he saw the gun," Payne said in a statement to Politico, adding that there was "no additional fear of great bodily harm or imminent death." Now that Gualtieri has declined to arrest Drejka, Bernie McCabe, the state attorney for Pinellas and Pasco counties, has to decide whether to prosecute him.
Hammer et al. said Gualtieri also was wrong to suggest his office could face civil liability if it arrested Drejka. The provision to which the sheriff referred concerns someone who is sued based on his justified use of force. In such a case, the law says, "the court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred" in defending against the suit. That provision has nothing to do with a law enforcement agency's decision to arrest someone when there is probable cause to believe his use of force was not lawful.
Another red herring that Gualtieri repeatedly mentioned was the right of someone who claims he used force in self-defense to a pretrial hearing at which prosecutors must disprove that claim by "clear and convincing evidence," a standard added by the 2017 law. While prosecutors have to make that showing before proceeding with a trial, the standard for making an arrest is still probable cause.
Gualtieri, who has a law degree from Stetson University and once served as his office's general counsel, certainly should have a better understanding of what the law says. You might surmise that, like many law enforcement officials, he does not like the Stand Your Ground law and is using this case to discredit it. But at his press conference, Gualtieri, a Republican, said he agrees there should be no duty to retreat for people attacked in public places, the feature that gives the law its name.
The sheriff seemed less keen on the 2017 revision. "The state attorney has the burden of proof, by clear and convincing evidence, that the defendant, the shooter, is not entitled to Stand Your Ground," he said. "Nowhere else is there anything like this in criminal law….That's a very heavy standard, and it puts the burden on the state." But neither that provision nor the rule allowing victims of public attacks to stand their ground was relevant in deciding whether there was probable cause to arrest Drejka. The one aspect of the law that was relevant, its supposedly "subjective" standard for self-defense, is purely imaginary.