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The controversial "stand your ground" law in Florida just entered perhaps its murkiest territory yet. Pinellas County State Attorney Bernie McCabe has charged Michael Drejka with manslaughter in the killing of the Markeis McGlockton.
Last month, as McGlockton shopped in a convenience store with his five year old son, Markeis Jr., the boy's mom, and two younger siblings were waiting in the car in a handicapped parking spot. In surveillance video, Drejka is seen exiting the store and confronting the woman. McGlockton saw this and came out of the store. It appears McGlockton confronted Drejka and shoved him to the ground. While on the ground, Drejka paused, and then shot McGlockton in the chest, in front of his family in the car. McGlockton is seen reeling back, then enters the store, and collapses in front of Markeis Jr.
In the context of this case, you may be wondering how Florida's stand your ground law is unique.
Florida's Unique "Stand Your Ground" Defense
Drejka plans to use the stand your ground defense, available in 25 States, which allows people to use deadly force if they believe they are in imminent danger or death without having to retreat, flee, or resort to other methods of non-deadly defense first.
In 2017, Florida made this defense even easier to use, and it differs from the other 24 states in two regards. First, the stand your ground law provides immunity to not just a charge or conviction, but to an arrest, which, in essence, shifts the burden onto the arresting police, and away from the defendant. Second, the burden is on the prosecutor to convince the judge that the defense cannot be used, rather than on the defense to prove why the killing was justified.
"Stand Your Ground" as an Immunity to Arrest
Many people criticized the local sheriff (who is also a lawyer) for not immediately arresting Drejka, but there's actually a good reason for that. In Florida, "stand your ground" provides immunity from an arrest. If an officer makes an arrest, and the judge allows the stand tour ground immunity to apply, the officer can face legal fees and civil penalties.
Keep in mind it took the State two months to file charges against George Zimmerman in the Trevon Martin case in 2012, since Zimmerman claimed he would use that defense. (Incidentally, Zimmerman ultimately waived his right to a stand your ground hearing, claiming self-defense instead, and was acquitted.)
Burden of Proof on Prosecutor
Florida strengthened its stand your ground law in another regard by shifting the burden of proof on to the prosecutor. In most states where this defense is used, the prosecutor proves the murder charge in a jury trial, and then it is the defendant's responsibility to prove it was ok because he was standing his ground. In Florida, however, the applicability of stand your ground is determined at the pre-trial hearing in front of a judge as an immunity, not really a defense, and it is the prosecutor's responsibility to prove stand your ground isn't applicable. And if the prosecutor fails, the defendant walks free with no trial by jury required.
Drejka is being held on $100,000 bail. When given his rights, he claimed he could not afford an attorney, but he is not being represented by the Public Defender office. Instead, his defense team consists of John Trevena, Bryant Camareno and Lysa Clifton, all private criminal defense attorneys.