Yesterday Pinellas County Sheriff Bob Gualtieri responded to criticism that he had misrepresented Florida’s “stand your ground” self-defense law while explaining his decision not to arrest Michael Drejka for fatally shooting Markeis McGlockton. But in attempting to set the record straight during a press conference that lasted nearly an hour, Gualtieri misrepresented his own public comments about the case and the test for arresting someone who uses deadly force.
Drejka shot McGlockton during an altercation at a convenience store in Clearwater on July 19. Surveillance video shows McGlockton, responding to an argument between his girlfriend and Drejka over her decision to park in a handicapped spot, pushing Drejka to the pavement. Drejka, still sitting on the ground, draws a pistol, prompting McGlockton to back away, at which point Drejka shoots him in the chest.
Under Florida law, the shooting was justified only if Drejka “reasonably believe[d]” it was “necessary to prevent imminent death or great bodily harm.” At a press conference the day after the shooting, Gualtieri said this test is “largely subjective,” a claim that was contradicted this week by three key legislators who had a hand in writing the law and the National Rifle Association lobbyist who helped get it passed.
Now the sheriff says he was misunderstood. “It is an objective standard,” he said yesterday, “but it has a subjective component to it because it has to be considered through the lens of the person who used force.” In other words, he explained, “what that person knew, how they knew it, and other factors that are in their heads” are relevant in deciding whether his actions were objectively reasonable “under the circumstances of the time.” That formulation is fine as far as it goes, since the law requires a judgment based on what a reasonable person would have done in the same situation. But that is not what Gualtieri said at his July 20 press conference.
“‘Stand your ground’ allows for a subjective belief by the person that they are in harm’s way,” the sheriff said then, and “we don’t get to substitute our judgment for Drejka’s judgment.” The question, he said, is not “what I would do, what you would do, what the public would do, what someone else would do.” What really matters, he suggested, is “the person’s subjective determination of the circumstance they were in” and “the fear that they had.”
The implication is that if Drejka sincerely feared for his life, he was justified in killing McGlockton, even if that fear was not reasonable in the circumstances. That is plainly not what the law says. Yet Gualtieri continues to imply that it is improper to second-guess Drejka’s assessment of the situation. “Do I think that I would have shot in that situation?” he said in an interview with The New York Times yesterday. “No. But just because I would not have, or don’t believe I would have, doesn’t mean he’s not within the boundaries of the law.”
At yesterday’s press conference, Gualtieri added to the confusion by claiming that Drejka was immune from arrest because it was not “absolutely clear” that the shooting was unlawful. “To arrest,” he said, “it must be so clear that as a matter of law ‘stand your ground’ does not apply in any way to the facts and circumstances that you’re presented with. That is not the situation here. The facts are not so clear that this is absolutely outside the boundaries of ‘stand your ground.'”
Again, that is not what the law says. It says a law enforcement agency “may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.” Probable cause, usually defined as a “fair probability,” is by no means the same as absolute clarity or certainty. Even if you assume that probable cause means something is more likely than not to be true (and it’s not at all clear that it does), it looks like Gualtieri would have been justified in arresting Drejka, since he conceded that Drejka “probably could have” defended himself by brandishing the gun without firing it.
Gualtieri cited the Florida Supreme Court’s 2010 decision in Dennis v. State, which established that defendants raising a self-defense claim have a right to a pretrial hearing on that question, since people who use force lawfully are immune from prosecution under the 2005 “stand your ground” law. The law “grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force,” the court said. “The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.” According to Gualtieri, that means the “stand your ground” law “has taken away law enforcement discretion to arrest unless there is no ‘stand your ground’ [defense] as a matter of law.”
In other words, if Drejka had said he shot McGlockton because he did not like his looks, Gualtieri could have arrested him, because that is not a legal justification. But since Drejka said he shot McGlockton because he reasonably feared for his life, Gualtieri was legally barred from arresting him, because that is a valid justification, no matter how implausible it might seem in this particular case. That reading of the law flies in the face of the authority to arrest someone when there is probable cause to believe his use of force was unlawful. Two weeks ago, Gualtieri said “we don’t have probable cause” to arrest Drejka. Now he seems to be saying something more than probable cause is necessary.
Muddying the waters further, Gualtieri said a 2017 law that changed the rules for pretrial self-defense hearings factored into his decision. Defendants used to have the burden of proving by “a preponderance of evidence” that their use of force was lawful. Now prosecutors have the burden of proving by “clear and convincing evidence” that the defendant’s use of force was not lawful. “The recently created burden that the state has to prove the shooter is not entitled to ‘stand your ground’ immunity by clear and convincing evidence is relevant at this stage too,” Gualtieri said, because people like Drejka have a right “not to sit in jail while all this is sorted out on an issue where the burden on the state is high.”
The logic here is murky. The prosecution’s burden at trial, which is to prove beyond a reasonable doubt that the defendant’s use of force was unlawful, remains unchanged. So does the standard for an arrest, which is still probable cause.
“Absent that immunity from arrest and the recently created burden on the state to prove by clear and convincing evidence that Drejka is not entitled to this immunity,” Gualtieri said, “Drejka would be sitting in jail right now, and the system would be working to figure it out.” In Gualtieri’s view, “when the legislature created Florida’s ‘stand your ground’ law, it said we don’t want people who have arguably acted within [the] law to sit in jail while the state attorney’s office spends weeks or months considering whether to file formal charges.”
Much depends on what Gualtieri means by “arguably,” since someone could have an arguable self-defense claim even if there was probable cause to doubt it. Rejecting the charge that Drejka got a pass because he is white and McGlockton was black, the sheriff noted that he had recently arrested white shooters in cases that the state attorney for Pinellas and Pasco counties, Bernie McCabe, decided not to pursue. But those examples illustrate a point that Gualtieri seems bent on obscuring: The standard for arresting someone who uses deadly force is much weaker than the standard for going to trial or winning a conviction.
Gualtieri emphasized that the McGlockton case is still open and that McCabe will ultimately decide whether to charge Drejka. But if there really is no probable cause to arrest Drejka, how could McCabe hope to convict him?
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