Briefly, On Confrontation, Conflict, and Murder


Sam Wilkinson

According to a faithful reader, I'm Ordinary Times's "least thoughtful writer." So I've got that going for me, which is nice.

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234 Responses

  1. Avatar Oscar Gordon says:

    Part of the reason why laws like FL SYG is such a mess is less about the law and more about the incentives and discretion DAs operate with.Report

    • Avatar Morat20 says:

      It’s not just them, it’s juries. When a defense attorney can boil the case down to “If you think it’s even remotely possible that the defendant was in fear for his life, then you must vote “not guilty” and be legally correct in that, that’s ripe for abuse.

      Removing duty to retreat, at least in public spaces, was a bad idea, a law crafted up by people who believe in the delusion of a “good guy with a gun” and that there was some massive conspiracy against them, as innocent “protectors of the people” were railroaded into jail for the crime of defending themselves.

      I don’t think the authors of the law thought it as anything but a bone to throw to the NRA.

      But any law where you can pick a fight, then pull out your gun and shoot the guy because “I was in fear of my life” is fatally flawed. It’s just a matter of how many dead bodies are gonna pile up before someone dares to buck the NRA and return to something sane.Report

    • Avatar Oscar Gordon says:

      My point is, this is the inverse of the cases of DAs going after legit defenders after Monday morning quarterbacking the event and deciding the defendant did not attempt to retreat sufficiently to satisfy the DA. The DA has near complete discretion regarding what cases to bring, and an incentive to only bring cases that A) they can win and B) satisfy whatever personal or political agenda they may have.

      The local PD and DA have decided this is a stinker of a case. Even people who approve of SYG understand that the PD & DA are misapplying the law, which suggests to me that the locals don’t want to touch it. Maybe they like the shooter, maybe they don’t like the dead guy, maybe they just don’t want to put a middle aged white shooter and a young black victim in front of a local jury because they know the locals will hand them an acquittal.

      My bet is they are hoping the state or the feds run the ball with this. Or maybe they want to stoke outrage and get SYG tightened up a bit more. Or maybe they are really just horrible people who truly think the shooter was justified.

      In the end, however, finding the right balance between the justified use of force and a duty to retreat seems to really vex both lawmakers and DAs, because as a nation, we have such a wide range of opinions regarding what is acceptable for either position. This forum itself is an excellent representation of that range of opinions.

      Sorry this is rambling and disjointed, it’s the weekend, which means I am doing 10 different things at once.Report

      • Avatar pillsy says:

        I dunno. Given the way that the chief lobbying organization behind SYG laws tirelessly advocates lawless, authoritarian, politically and racially motivated violence, with occasional references to Second Amendment rights, I’m pretty sure this sort of thing is exactly what they want to have happen.Report

  2. Avatar Mike Dwyer says:


    Let me preface this comment by saying I absolutely believe the law failed here and the shooting was unjustified and ethically and morally wrong… With that said, you have spent the last couple of years building a large case which contends the law often fails by legally allowing people to shoot other people. So we know all of the situations that you think shootings are unjustified. My question for you is, do you ever see a situation where a shooting IS justified? If so what does that look like?Report

    • @mike-dwyer Take the examples I’ve written about previously: the dead were justified to stand their ground. They’re the ones who faced murderous attackers willing to kill. They’re the ones who’s lives were being threatened. They’re the ones who were in danger.Report

      • Avatar Mike Dwyer says:


        That doesn’t actually answer my question, so i will ask again: Is there a scenario where shooting someone is justified?Report

        • Avatar Tod Kelly says:

          I think Sam is answering your question. He’s saying it’s OK in the case of defending a threat against your life.

          The cases Sam generally writes about are cases where the person killed was not a reasonalbe threat to anyone, but we treat it as an acceptable killing anyway.Report

          • Avatar Mike Dwyer says:

            If you’re correct about that interpretation Tod, then Sam is only approving the killing of police intent on murder. I guess I am looking for him to speak more broadly. When you attend a concealed carry class, most of the course is devoted to ethics i.e. when it’s okay to shoot someone. I’d just like Sam to spell out if that is ever okay for the general public in dealing with one another? Or to take it even further, are the police ever justified in using lethal force?Report

            • @mike-dwyer If somebody is shooting at the police, the police are authorized to return fire. That seems reasonable enough.Report

            • Avatar Stillwater says:

              When you attend a concealed carry class, most of the course is devoted to ethics i.e. when it’s okay to shoot someone.

              ‘”Is it OK to shoot someone for poaching my parking spot?”
              “What about if the guy’s a dick to me when I yell at him? Is it OK to shoot him then?”
              “No, not even then.”
              “Alright. How about if I confront him and he pushes me to the ground. Is it OK to shoot him if that happens?”
              “Yes. Yes it is.”Report

        • @mike-dwyer It perfectly answers your question, but for the sake of clarity: McGlockton would have been justified to killed Drejka, and Martin would have been justified to kill Zimmerman. In both cases, armed assailants pursued them with the intent to cause conflict and with a willingness to kill. The only lives threatened were McGlockton’s and Martin’s.Report

          • Avatar Mike Dwyer says:

            So, if an armed assailant is pursuing you, it’s okay to shoot them. What about an armed robber at a grocery store? A home invasion? Being physically attacked by multiple unarmed assailants? Or how about just getting the shit kicked out of you by one person and there is no help in sight?

            You’re very vocal about how the police or a private citizen should not have pulled the trigger. Is being actually shot at the only time you would approve?Report

            • Avatar dragonfrog says:

              This is easy, Mike.

              Can you retreat to safety? Then you must. You cannot stand your ground just because you don’t want to give ground (including giving up mere possessions, parking spots etc).

              Killing is for defending a human life, when retreat to safety is impossible.Report

              • Avatar Oscar Gordon says:

                This is where the hindsight problem comes to the fore. Did the person KNOW they could retreat further. Even if they knew about a safe place, is it reasonable to expect them to think of it in the moment when they are threatened and panicky and experiencing tunnel vision (etc.)?

                Ideally, competent defense counsel would make these points.

                Hopefully the person can afford competent defense counsel.Report

              • Avatar dragonfrog says:

                I get that these things would be raised as defences. Personally I’m not sympathetic, because I’m unsympathetic to anyone who goes around with a gun for anything other than properly licensed hunting.

                But really – killing is a last resort. “Was this truly a last resort” should be asked, and had better be really credibly defended.

                And if you are carrying a gun, I absolutely think you have a much greater than normal duty to stay out of fights, and that any fight an armed person steps up to start, really really undermines any claim that any use of their weapons was a last resort – there was always the earlier resort of keeping their mouth shut in the first place. Don’t like the prior restraint on freedom of speech? Don’t carry a gun.Report

              • Avatar Oscar Gordon says:

                To your last paragraph, my comments elsewhere should demonstrate my agreement with you.Report

              • Avatar Stillwater says:

                Prosecutor to Drejka: “After you were pushed to the ground and grabbed your gun did you make any effort to avoid the use of deadly force? For example, did you tell McGlockton to not come any closer or you’d shoot?”

                Drejka: “[garbled repetitions that it all happened so fast and he really – legitimately – feared for his life]”

                Prosecutor: “Well, let’s go to the tape.”Report

              • Avatar Dark Matter says:

                …there was always the earlier resort of keeping their mouth shut in the first place. Don’t like the prior restraint on freedom of speech? Don’t carry a gun.

                Where we’ve run into problems is with law enforcement (i.e. non police trying to see laws are followed). The people who try to do this expect to be dealing with criminals, to be physical outmatched by people willing to hurt them. There’s an element of “Jack Russell Terrier” in this, i.e. a little dog bred to go after the badger in the badger hole.

                It’s probably worth mentioning that “a willingness to punish people who break society’s rules even at your own expense” is very much a killer app for humanity, i.e. it’s an instinct other primates don’t have and they suffer because of it’s lack. We can organize socially and benefit from that organization to a degree that we’re up there with the ants, and a big part of that is punishing freeloaders. These are deep instincts, they shape society, and some people get more than their share and end up organizing Jack-Russell-Terrier-like citizen’s enforcement.

                If it’s illegal then someone will die for it, in this case someone died because of handicap parking regulations. Now it’s likely the benefit to society is such that having handicapped parking is worth the (rare/low) deaths associated with it, but the death rate is non-zero.

                (That post wandered I guess).Report

              • Avatar Maribou says:

                ” i.e. it’s an instinct other primates don’t have and they suffer because of it’s lack. ”

                That’s not true.Report

              • Avatar Dark Matter says:

                Interesting… thank you.Report

              • Avatar Dark Matter says:

                You cannot stand your ground just because you don’t want to give ground (including giving up mere possessions).

                (I get that you’re explaining and not arguing for this but…)

                There’s something very distasteful about someone being able to break into my house, dump all sorts of shit on my life, and my duty to keep them alive is greater than my right to stop them. Intuitively, the law is supposed to prevent them from doing that to me, not prevent me from stopping them.Report

              • Avatar J_A says:


                There’s something very distasteful about someone being able to break into my house, dump all sorts of shit on my life, and my duty to keep them alive is greater than my right to stop them. Intuitively, the law is supposed to prevent them from doing that to me, not prevent me from stopping them.

                It’s because as a society we (should) value life over most other considerations. That’s why taking a life is only justified as a last resort to protect a life.

                If (when) we agree that dumping shit in your life is a good reason to kill someone, where is the next bright line: you shall not kill loud neighbors that throw parties; you shall not kill able bodied people that park in the handicapped parking spot; you shall not kill spouses that do not put the lid on the toothpaste (*)?

                I really don’t see the stop point between killing people for dumping shit in @dark-matter ‘s life and killing people for improper parking. It’s a big difference of degree, I know, but a very small difference in kind

                (*) that sh** is fishing annoying, don’t you agree?Report

              • Avatar InMD says:

                Maybe I’m misreading and @dark-matter can correct me if I’m wrong but it seems like all he’s describing here is a castle doctrine. He did say ‘break into my house’. I’m on record in this conversation as not liking SYG but forcible entry into a home (and IMO a vehicle) sets a pretty easy bright line. It’s categorically different than a place open to the public like a parking lot.Report

              • Avatar Dark Matter says:

                Some of what you said is “dueling rights” conflicts. My wife has the right to leave the lid off the toothpaste, the neighbors have the right to have a party. If I disagree I can pull in other parties to argue the case.

                Where it gets weird is when we’re dealing with crime and criminals. You do not have the right to break into my house. That gal did not have the right to take that parking spot, much less have her bf violently defend that right.

                I guess the bright line is violence, and breaking society’s monopoly on that. Arguing I don’t have the right to respond to violence with violence is arguing criminals have the right to be violent but normal people do not. I remember a quote to the effect of “after you open the door to violence, you have no cause for complaint if more violence than you were expecting walks in”.

                Now the parking space example takes this to an extreme, but that might be an illusion. Totally remove the parking space and make the guy the girlfriend’s ex and replay everything. They argue, the current bf jumps in, turns a non-violent confrontation into a violent one and gets shot. I’d like a jury to review all of that but the cops think it’s not worth anyone’s time (maybe that means they’re right and maybe that means SYG should be narrowed but whatever).

                It’s because as a society we (should) value life over most other considerations. That’s why taking a life is only justified as a last resort to protect a life.

                I think this, as a concept, leads to all sorts of broken situations. Not just the guy breaking into my house, but also things like abortion rights, the right to die, and even into things like organ donation. My right to my life should not restrict your rights.

                (*) that sh** is fishing annoying, don’t you agree?

                Get seperate toothpaste tubes.Report

            • @mike-dwyer That last example there is an interesting one, as it is the defense offered for Zimmerman, who, while armed, pursued an unarmed teenager whose only crime was having snacks, and then killing that teenager for defending himself. Why does Zimmerman’s (or, perhaps, Drejka’s) humanity matter so much more to you than does the humanity of the individuals they killed?Report

              • @sam-wilkinson @mike-dwyer

                Guys, both of you are by my lights being unfair to the other and making statements that don’t match what the other person has said, here or in the past. Sam, this one was particularly direct in its unfairness given that Mike already stipulated this shooting was unjust, whereas Mike, you keep hounding Sam… it’s not healthy or productive, IMO.

                I’m not sure what to do about it, but you’re both adults whom I see as perceptive and responsible, so I expect you can figure it out yourselves.Report

              • Avatar Mike Dwyer says:


                I don’t think it’s unfair to ask a post author, who is participating in the comment threads, to explain themselves. I haven’t asked Sam any questions that were out of line and if there is any repetition on my part it only stems from a lack of clarity on the responses.Report

              • Avatar Mike Dwyer says:


                I’m not sure why you are answering a question with a question. I asked you something pretty straight-forward about self defense ethics and if you provide some guidance on when, if ever, you would approve a private citizen shooting someone else.

                You are pointing to a specific example where the shooter instigated the altercation. Forget a case from the news that makes your point for you. I’m asking you an abstract question of when (if ever) a private citizen is justified in shooting someone else?Report

              • @mike-dwyer When that private citizen has been attacked without having provoked the attack through their own deliberate provocation.Report

  3. Avatar Tod Kelly says:

    A ‘Stand Your Ground’ law is the kind of thing that will inevitably make certain types of men go out of the way to find ways to stand their ground, and will inevitably make certain types of people cheer for them having done so.Report

    • Avatar Morat20 says:

      The current mythos (“good guy with a gun”) around gun ownership does not help.

      While it’s not universal, there seems a significant change in the way gun ownership was viewed. My parents generation seemed to consist more heavily of sportsmen and hunters, and less of people owning for self-defense. That changed sometime in the 80s and 90s, and began to tilt the other way.

      Whether is was the last big crime wave, or the dropping number of hunters, or a deliberate shift in PR by manufacturers or what I don’t know.

      Cynically, I tend to blame the crime wave and a deliberate PR shift — after all, hunting rifles and shotguns tend to last a very long time, and selling a man a new rifle when he’s already got a good one is a very hard sell. Whereas a man in fear of “crazed rapists and thugs” breaking into his house, well — does he have a gun in every room? Does he have enough guns for a prolonged siege from an angry gang, like in the movies?Report

    • @tod-kelly Please do not rewrite what I tried to write, only much better and far more succinctly than I did. That isn’t fair. It makes rethink writing at all. (“Good!” screams an inevitable voice from the peanut gallery.)Report

    • Avatar Burt Likko says:

      Remember a guy named Bernhard Goetz?

      Nihil novae sub sola.Report

  4. Avatar Mike Siegel says:

    “Jurors later excused the killing, noting that Zimmerman said that he was scared and that Florida’s Stand Your Ground law required nothing more than Zimmerman’s fear.”

    This isn’t right. Zimmerman didn’t claim SYG; his defense was straight-up self defense. He claimed that Martin was on top of him, bashing his head into the ground, a view that was supported by audio of the shooting, eye-witness testimony and injuries to the back of his head. There is no state in the country where’s that not straight-up self defense. Zimmerman was a jerk cop wannabe who had no business trailing Martin. But the case had little to do with SYG.

    “all because Drejka can credibly report that he was afraid for his own well-being in the aftermath of having been shoved to the ground.”

    Again, not quite correct. The Florida statute only allows deadly force to be used in the threat of “imminent death or great bodily harm”. There was no reason to believe either was going to happen in this case; which is why the application of it is fundamentally incorrect. In fact, the bulk of the SYG law deals with someone breaking into your home or car, where you are legally entitled to be and they are not.

    And there is simply no comparison between the immunity given to cops in shootings and this case. Cops can break into the wrong home, initiate a confrontation and shoot someone in cold blood. In fact, Florida’s SYG laws specifically singles out law enforcement as someone you can not employ SYG against, even if they are breaking into your house in the middle of the night and you have no idea what’s going on. In all cop-shooting cases, thanks to SCOTUS precedent, juries are instructed to not convict unless they believe, without a doubt, that the cop had no fear for his life, which Jamelle Bouie pointed out requires them to engage in telepathy.

    I do agree that there are problems with the law, mainly on its application. I would prefer SYG cases to be decided by juries in case of any doubt.Report

    • Avatar Stillwater says:

      You’re right that Zimmerman didn’t invoke SYG laws in his legal argument and relied on self-defense statutes instead. But at the time Florida had some of the most expansive self-defense laws on the books. Given that, it’s not clear that a prosecution in every other state would have come to the same conclusion. Seems like an open question to me.Report

      • Avatar Mike Siegel says:

        The law was revised after the Zimmerman case to be a little clearer about the threat of death or great bodily harm. But I don’t think you’d ever have trouble invoking self-defense in a case like that. Most prosecutors would not have brought the case or, at most, have tried something like manslaughter arguing that Zimmerman initiated the confrontation (although that would be hard to prove).Report

        • Avatar Stillwater says:

          Hypothetical time: suppose Martin had lived and been able to provide an account of *his* state of mind at the time of the confrontation and the moments leading up to it, espeically wrt the same self-defense and related statutes Martin appealed to. How do you think things have played out?Report

    • @mike-siegel It doesn’t really matter what Zimmerman’s defense was: he was he one that posed the deadly threat. He was stalking a teenager while armed and willing to kill. Acquiescing to Zimmerman’s version necessitates denying Martin his humanity – his fear, his self-defense, etc – which is the perversion.Report

      • Avatar Mike Siegel says:

        It’s not “Acquiescing to Zimmerman’s version”. His version was supported by evidence on the scene and the testimony of an eye-witness. We will never know what was going through Martin’s head or his version of what happened. But the end state — Martin on top of Zimmerman and slamming his head into the concrete — is self-defense in any jurisdiction.Report

        • Avatar Stillwater says:

          Right. Likewise, it’s entirely possible (I’d say highly likely) that Martin perceived Zimmerman as a threat to his bodily safety and the fact that he (Zim) didn’t retreat when confronted justified Martin’s use of lethal force. But since Martin’s dead and Zim’s not all we know is that the first one to successfully use lethal force won. By default. Zimmerman was the only one of the two who could claim he feared for his life.

          Notice too that having his head smashed into the ground isn’t a decisive argument since Martin, had he lived, could have argued that he was doing so out of self-defense (ie., that if he stopped, or retreated, Martin would have shot him, which is exactly what happened.)Report

          • Avatar Doctor Jay says:

            I think this is the salient point. SYG makes duels to the death legal on the street. Even if both survive, they can each claim they were in fear for their life, and no prosecutions are possible.

            We made dueling illegal for a reason, but it seems we’ve forgotten the reason.Report

        • @mike-siegel Even if you believe that version of events, Martin was being pursued by a murderous, armed individual. He was an innocent teenager with iced tea and Skittles. Surely he’s owed the right to his own defense. Or, for some reason, is he not owed that in the same way that Zimmerman was?Report

          • Avatar Mike Siegel says:

            Zimmerman was “murderous”? Interesting read since he’d done this many times and hadn’t murdered or shot anyone. I apparently I lack the ability to look into his heart. All I can judge on is the facts which is that the Zimmerman shot Martin while the latter was on top of him, slamming his head into the pavement.

            If the version that came out was that Zimmerman attacked Martin, who defended himself with lethal force, then self-defense by Martin would be justified (although I’m dubious that a jury would see it that way). But there’s no evidence to support that version of events. The only objective we have is that Zimmerman was pursing him (against the cops’ advice) and that, however the confrontation happened, it ended the way it dead … which would be called self-defense, SYG or now SYG.

            (Note that according to Martin’s girlfriend, Martin *did* perceive Zimmerman as a threat.)

            Look, I’m way more sympathetic to Martin than I am to Zimmerman (even if Zimmerman hadn’t been a Grade-A jerk since the shooting). But the focus on the Martin re SYG crosses as trying to squeeze a tragedy into an agenda. SYG law or no SYG law, this case ends the same way: with Zimmerman’s acquittal.Report

          • Avatar Dark Matter says:

            If memory serves there were two Martin/Zimmerman encounters. You’re describing the first, where Zimmerman was following Martin around.

            Then Martin successfully eluded him, called a friend, and basically went back to beat Zimmerman up because he was pissed. If they’d been in cars we’d call it road rage.

            Going back to beat someone up because you’re pissed can’t reasonably called “self defense”. Zimmerman was the aggressor of the first encounter, but not the second.Report

            • Avatar Maribou says:

              @dark-matter Or, Zimmerman picked Martin’s trail back up and Martin, fearing for his own life, seeing this guy showing up again, ambushed Zimmerman meaning to frighten him into giving up the chase. That point is still, years later, in dispute.

              This latter interpretation seems hella more likely to me, having been followed while I was walking. The point where they pick your trail back up is the “oh shit, they’ve seriously targeted me” point and your adrenaline goes through the roof.Report

    • Avatar pillsy says:

      “Jurors later excused the killing, noting that Zimmerman said that he was scared and that Florida’s Stand Your Ground law required nothing more than Zimmerman’s fear.”

      This isn’t right. Zimmerman didn’t claim SYG; his defense was straight-up self defense.

      Zimmerman didn’t raise it in his defense, but it still appears to have affected the jury’s decision.Report

    • Avatar Mike Schilling says:

      Dr. Valerie Rao, the Jacksonville, Fla., medical examiner for Duval, Clay and Nassau counties, testified that she reviewed Zimmerman’s photographs and medical records. She was not involved in the autopsy of Martin.

      The wounds displayed on Zimmerman’s head and face were “consistent with one strike, two injuries at one time,” she testified. “The injuries were not life-threatening,” she said, adding they were “very insignificant.”Report

  5. Avatar Michele Kerr says:

    Look, clearly the shooter is a pill and probably also mentally ill.

    But you could just as easily say the woman had a “duty to retreat”. She was the one parking in a handicapped spot. Or suppose the boyfriend had killed the shooter by slamming him into the ground. Would he have been able to plead self-defense, or would the argument be that he had a duty to retreat before using physical force to beat down the guy who, after all, was just upset about people violating a law that hurts handicapped people? (Just parking for a second–yeah, try that if a cop comes by and wants to repurpose some of your cash for government spending.)

    As for letting a jury decide, someone already observed this, albeit sarcastically: ““If you think it’s even remotely possible that the defendant was in fear for his life, then you must vote “not guilty” and be legally correct in that, that’s ripe for abuse.”

    This isn’t even abuse. “Members of the jury, the defendant was speaking reasonably, at a safe distance, about a woman who was violating community standards. Her much larger, much younger, boyfriend came charging out of a store and violently assaulted the defendant without warning, without even identifying himself as the woman’s companion.”

    And you can’t even claim the boyfriend instantly started groveling or showing signs of retreat.

    Maybe the DA will press charges anyway, but I think they might just recognize that juries aren’t looking at situations with the same eyes as the average NRA opponent.Report

    • Avatar Mike Dwyer says:


      That’s probably the best set of arguments I have heard for why this guy isn’t going to get charged.Report

    • Avatar Oscar Gordon says:

      This is what I mean when I say that there is a wide range of opinion regarding what constitutes justifiable use of force and a duty to retreat. The reasonable limits I envision are sure to be seen by another as wholly unreasonable and ripe for abuse.Report

      • Avatar Mike Schilling says:

        This is what I mean when I say that handing out carry permits like free samples of candy is going to get people killed.Report

    • @michele-kerr The man was armed,had a history of threatening of people, and was willing to kill. There is no way the girlfriend owed him her retreat, especially by Florida’s standards. Her life was threatened.Report

      • Avatar North says:

        Well yeah, if the girlfriend had blown him away for menacing her no doubt she’d not have been charged. /sarcasmReport

      • Avatar Stillwater says:

        I’ve been reading up on some of this stuff (eg., a case here) and it seems to me the practical lesson we should all learn from this is that it’s an escalation game where the first one to use deadly force wins.Report

      • Avatar Stillwater says:

        There is no way the girlfriend owed him her retreat

        And certainly because she was parked in the handicap zone. (Tho it does remind me of Steve Martin’s “joke” about the death penalty for parking violations.)Report

      • Avatar Mike Siegel says:

        Especially as the SYG law specifies that you have no duty to retreat from your own vehicle.Report

    • Avatar pillsy says:

      “Not instantly grovelling” is a death penalty offense now?

      What the literal fuck?Report

    • Avatar Slade the Leveller says:

      This is the kind of nonsense you get when you throw out centuries of good ol’ English common law and replace it the some 2nd Amendment wankery.Report

  6. Avatar Damon says:

    I watched that video. Regardless of what Drejka was saying to Jacobs, her boyfriend came out and did not try to de-escalate the situation, he straight up attacked the guy. He only backed off when Drejka pulled a gun. Drejka could have been calling Jacobs the most disgusting names and threatening her, but that doesn’t warrant assault and battery from McGlockton.Report

    • Avatar Stillwater says:

      “He deserved to die.”Report

    • Avatar Maribou says:

      @damon Really?

      I haven’t watched the video, but “regardless” seems a bit strong.

      If I came out to someone telling one of my *dear friends*, let alone my spouse, “I have a gun and I’m going to shoot you if you don’t move your car right fishing now” with little kids around, my first (justifiable IMO) reaction would be to put that person on the ground before they could shoot my friend. What would hold me back would be whether they were likely to notice me or not before I could tackle them, not my own personal safety.

      There are threats you take seriously and threats you don’t. “I have a gun and I’m going to shoot you” seems like one you would take seriously. I mean, I say this as someone who has had someone scream death threats at me from inches away and follow me down the street yelling them, and who didn’t react or escalate the situation. If they were doing it to someone I felt protective of, with little kids around? Totally different and while I *might* have the intellectual capacity to hold back, I don’t know, at all, that I would.

      I suspect McGlockton would have been okay with dying instead of having that guy kill his girlfriend or the kids.Report

    • Avatar pillsy says:

      Maybe he should have been charged with assault, then.

      But I suppose being summarily executed by an armed lunatic is every bit as just and lawful an outcome.Report

      • Avatar Stillwater says:

        These hopped up types confuse me. If someone f***s with their family they’ll come after ’em but if they’re fucking with someone else’s family and get come-after they’ll shoot ’em.Report

    • @damon Drejka was the armed threat. How was McGlockton supposed to know otherwise? And why does he owe Drejka the cooler head? Drejka was screaming at his girlfriend, and two younger children were in the car. He was the threat, as is obvious.Report

  7. Avatar Jaybird says:

    Part of the reason there are Stand Your Ground laws is because of the position such laws are usually held in opposition to: Duty To Retreat.Report

    • Avatar Jaybird says:

      Wondering about this some more…

      Is the fundamental assumption that we, as a society, ought to have a Duty To Retreat as a legal assumption? (Is it that, screw “legal”, we, as a society, ought to have Duty To Retreat as a *MORAL* imperative?)

      Because I have two sets of arguments fighting it out in my head.

      The first is against the argument that a legal assumption of Stand Your Ground is going to have too many excesses and this case is one of the most egregious examples we’re ever going to find and people who argue that we need to have Stand Your Ground need to be honest that this sort of thing is baked into the Stand Your Ground cake?

      The second is against the argument that we, as a society, ought to have a Duty To Retreat as a not only legal but *MORAL* assumption.

      And using the arguments against the latter if the real position is actually the former isn’t fair to the real position.Report

      • Avatar Stillwater says:

        I don’t know about all that stuff. My problem with these types of laws is that being the instigator in a physical altercation is excused if a person subsequently legitimately fears for their own life. Check out the case I linked to above: the FL SC reaffirmed that the initiator of a conflict doesn’t have a duty to retreat and all the normal self-defense protections apply. So the laws as written are effectively a license to kill. Find someone or some type of person you don’t like, confront them in a parking lot or stalk them thru the streets, get pushed to the ground, then shoot em. It’s legal.Report

        • Avatar Jaybird says:

          Yeah, I’m a fan of castle laws and a fan of extending the idea of the “castle” to the car that one is driving.

          This particular case is a pretty ugly one. As others have pointed out, the deceased erred by shoving rather than shooting.

          Does Florida Law allow for civil suits in situations where SYG might protect a shooter who arguably defended himself?Report

          • Avatar pillsy says:

            No, specifically got rid of the possibility.

            Also, like, really seems to me to be a no-brainer to say that you have a moral duty to not shoot people if retreat is an alternative.Report

            • Avatar Jaybird says:

              Colorado should do that for weed laws.

              Save everybody a lot of trouble.Report

            • Avatar Jaybird says:

              Also, like, really seems to me to be a no-brainer to say that you have a moral duty to not shoot people if retreat is an alternative.

              Yeah, I figured that the argument from incredulity would show up. (Though I thought it would take until we started talking about carjacking or something. “Are you *HONESTLY* saying that a car is worth *MORE* than a Human Being?” or something like that.)

              If you want to argue the much more difficult proposition that we should have a Duty To Retreat, I don’t envy you. I have trouble with that one even as an intellectual exercise.

              Additionally, the research I did yesterday on this brought me to the map on this page that shows the number of Duty To Retreate states vs. Castle states vs. Castle Extends To Vehicles states vs SYG states.

              As far as I can tell, the no-brainer position exists in Vermont and Washinton DC and a handful of territories. All of the other states have positions that it’s more difficult to believe that anyone could possibly hold them.Report

              • Avatar InMD says:

                To be fair ‘duty to retreat’ is really ‘duty to retreat if reasonably possible‘ and the states that have it also I believe all have a castle doctrine where there is no such duty in the home and maybe your vehicle. Obviously there are devils in those details and its subject to Monday morning quarterbacking about what was and wasn’t reasonably possible. That said its not ‘duty to retreat at all costs and at great risk and danger to yourself.’ The policy question is which variation has the best cost/benefit.Report

              • Avatar Jaybird says:

                Dude, I posted a link to a map. The map makes distinctions between Duty To Retreat and Castle Doctrine laws.

                The policy question is which variation has the best cost/benefit.

                Are we looking at this like a machine or like a moist ball of emotions?

                If it’s the latter, I know that I’d much rather attend the problems that comes from assuming that people know they have to take care of themselves and their loved ones more than they have to take care of the thief who is trying to drag them from the wheel of their car.

                Here’s an example from just three weeks ago. Guy tries to carjack a car that still has children in it. The mother of the children shoots the carjacker in the head.

                I would be much more comfortable arguing something like “play stupid games, win stupid prizes” than “the woman should have found another option to shooting the man trying to steal her car with her children still in it”.

                I mean, if I were actively *TRYING* to come up with a better example with all of my thumbs on all of the scales, I doubt I’d be able to come up with a better example than the one that actually happened less than a month ago.Report

              • Avatar InMD says:

                I’m looking at it from the following perspective:

                I do not think people should go to prison for defending themselves from legitimate threats, including with deadly force when the threat justifies it. However I also don’t think we should construe the right to self defense so broadly that it totally lets people off the hook for going around picking fights then responding with deadly force when someone takes the bait.

                In the example you shared I think the woman would be very hard to convict of a homicide in any jurisdiction so I don’t think it’s relevant. If you want my personal opinion, it’s that a person in her position should not be punished. I think the situation in the OP should go to a jury but Florida’s SYG law seems to discourage that.Report

              • Avatar Jaybird says:

                Are there any among us who think that people should go to prison for defending themselves from legitimate threats? Including with deadly force when the threat justifies it?

                The point of SYG laws aren’t over the issue of whether someone would be convictable of a homicide, they’re more to tie the hands of law enforcement and the prosecution.

                While it’s true that the mother probably wouldn’t be convicted in any jurisdiction in the country, the question is:

                Should she be prosecutable-in-theory?

                Do you think that the DA should be *ABLE* to bring charges against her if he thought “you know what? She had a duty to retreat”?

                Because if you think that whether she be charged be left to the discretion of the DA, then it’s relevant.Report

              • Avatar Mike Dwyer says:


                “Are there any among us who think that people should go to prison for defending themselves from legitimate threats? Including with deadly force when the threat justifies it?”

                I think there are plenty of people that both write and comment for this site that believe that.Report

              • Avatar InMD says:

                To reiterate, if that’s the case, I am not among them.Report

              • Avatar pillsy says:

                I think there would be a lot less of that if other commentators on this site weren’t constantly treating reckless, armed, murderous assholes like part of their in-group.Report

              • Avatar Mike Dwyer says:


                We’re all grown-ups (I think). Commenter A saying something outrageous should not mean that Commenter B is required to respond in-kind. If someone actually thinks that people should almost/never be allowed to shoot someone else unless there are actual bullets coming their way, then they should admit it. If they believe in a little more room than that, but are taking an extreme position just to be contrary…well, that doesn’t move the conversation in a positive direction, does it?Report

              • Avatar Stillwater says:

                If someone actually thinks that people should almost/never be allowed to shoot someone else unless there are actual bullets coming their way, then they should admit it.

                Mike, suppose you found evidence that Sam’s motives are as sinister as you believe: that he wants to outlaw all types of lethal-force self-defense except in the case of returning gun fire. Would that change how you respond to the specific anti-SYG arguments he presents? If so, why?

                Add: tho per Maribou, you apparently agree with Sam about this case.Report

              • Avatar Mike Dwyer says:

                “Mike, suppose you found evidence that Sam’s motives are as sinister as you believe: that he wants to outlaw all types of lethal-force self-defense except in the case of returning gun fire. Would that change how you respond to the specific anti-SYG arguments he presents? If so, why?”

                Absolutely. I know through his other posts that Sam is trained to de-escalate physical confrontations through his job. If that, or other life experiences, religious views, whatever had led him to a position of general non-violence in almost every conceivable situation, I could respect that. As it stands though, because the bulk of his posts focus on the shooting of unarmed black men, it looks like he has an agenda. Even if the issue needs to be addressed, that creates the appearance of bias in every conversation.Report

              • Avatar Stillwater says:

                So, just to be clear here … if that’s the case – that you perceive bias in his posting history – do you feel that you are justified in not rebutting his arguments on the merits but instead merely dismissing them as part of a larger (unknown, potentially subversive) agenda?Report

              • Avatar Mike Dwyer says:


                I see what you are saying, and I normally advocate approaching each situation based on its merits. I will also admit to my own biases towards Sam due to his rhetoric. I also come from a cop family, so I am more sensitive to broad statements about the police. With all of that said, that’s just the problem. because Sam only covers the situations where he believes that shootings were not justified, cranks the rhetoric up to 10, and never addresses legitimate shootings as a counter-balance…it’s very hard to look past his posts as anything other than support of an un-stated agenda.Report

              • Avatar Maribou says:

                @mike-dwyer Given the number of times he’s stated his agenda (including, archly by linkout in this very post), I hardly think it fair to claim it’s unstated.Report

              • Avatar Stillwater says:

                Bad faith is the new faith, I guess. I mean, I sympathize with what you’re saying. For my part I just don’t see Sam as advancing a radical agenda. Seems to me the cases he writes about are so obviously problematic – legalized murder – that anyone who would wonder why he focuses on *them* to the exclusion of all the good things cops do in the world is also engaging in bad faith argument. So I guess I’m guilty of it too.Report

              • Avatar Mike Dwyer says:


                I’m sure my take on Sam’s writing is as much about my biases as his.Report

              • Avatar pillsy says:

                If Commenter A is saying something outrageous to justify or defend someone who didn’t deserve to be shot being shot, and to support laws that let the shooter get away with it, that is actually strong support for Commenter B’s contention that the laws let people get away with murder for terrible reasons.Report

              • Avatar Mike Dwyer says:

                So both sides just crank up the rhetoric until no one is actually listening anymore….? Sounds productive.Report

              • Avatar pillsy says:

                The thing is SYG laws are asking for a huge amount of trust, and if people who support them (and make up the jury pool, and influence law enforcement, and are generally regarded as dominant politically in jurisdictions where SYG exists) can’t even agree that a guy like Drejka should be going to prison for shooting a guy he absolutely did not have to shoot…

                …well, I’m not vaguely comfortable extending that kind of trust to them.Report

              • Avatar Jaybird says:

                I think there would be a lot less of that if other commentators on this site…

                If we’re down with holding positions just because other people hold positions, I’d put my money on the position that is reflected by the map of the state laws of the country.Report

              • Avatar Jaybird says:

                Sure, but it’s better that they come out and say “This Is What I Believe!” than for us to just take it as given.

                I mean, I imagine they have this because they see it as a morally superior position. Surely they wouldn’t want to leave that particular light under a bushel.

                I’m willing to assume that we don’t have any people who would argue that even Castle laws go too far until someone says otherwise.Report

              • Avatar Mike Dwyer says:

                I think in this very comment thread some people are talking around their actual opinion.Report

              • Avatar Jaybird says:

                If they’re talking around their actual opinion, then you should see that as them acknowledging that their opinion isn’t something that they’re willing to defend and take the W.Report

              • Avatar Maribou says:

                What “plenty of people”? As far as I can tell, you’re responding to Sam, who may or may not hold the position you’re ascribing to him, and then generalizing very broadly to others.

                You yourself said elsethread, in strong language, that you don’t believe this shooting was justified.

                Why would you expect people not to respond out of frustration – not to lie about their positions but to focus on the parts of their positions that align with their frustration – when they are responding to what seems like an incredibly unjustified shooting *even to you yourself*?Report

              • Avatar Mike Dwyer says:


                I’ll reply with a clumsy analogy… In the last year or so OSHA changed some laws around drug testing in the workplace (you can no longer test for just an injury). When i asked my HR lady to explain the policy we did a quick exercise:

                What if an employee hits a dock door with their forklift? “We send them for drug testing.”

                What if an employee sprains their back while lifting a heavy box? “We do not send them for drug testing.”

                What if an employee falls down a flight of stairs and breaks their arm? “Ahhhh…” she said, “That’s the gray area.” She went on to explain that in that situation two members of management have to independently assess that the employee was actually under the influence at the time of their accident, following written procedure, and then sign a form stating reasonable suspicion.

                So my point here is that people seem to be really good at stating when we SHOULDN’T shoot someone, but they aren’t as willing to say when we SHOULD. I don’t find that helpful.Report

              • Avatar Maribou says:

                @mike-dwyer Considering the end result is a dead person, I think it’s entirely understandable, though, that people don’t want to narrow down past “if other people will be dead”.

                I think the idea that self-defense is a legal defense, ie something that should come up during trial (not necessarily for murder, manslaughter would be fine by me) and not something to be pre-emptively judged without charges, is a reasonable one.

                If I shoot someone, I think being tried for that shooting is a reasonable thing to happen. Even if it’s quite obvious to me and almost everyone else that I wasn’t at fault. There should still be a trial. The forms should be observed.

                I also think self-defense should be a very strong defense, but not strong enough to counter what you and I saw in the shooting under discussion. I can think of instances that would be justified that might have some superficial similarities to what we saw there, but I’m unwilling to offer them in a context where multiple interlocutors are so strongly convinced that this shooting, the main one under discussion, is perfectly acceptable. Because I fully expect that should I try, my words will be twisted around even more than they already have been.Report

              • Avatar Michael Cain says:

                …but they aren’t as willing to say when we SHOULD. I don’t find that helpful.

                I generally try to stay away from this topic, but… the state can’t grant, or at least shouldn’t be granting, authority of the form, “Under conditions A, B, and C, a citizen SHOULD shoot and kill someone.” It’s a matter of MAY; under what conditions may a citizen shoot and kill someone without punishment. (Many Quakers would agree with a statement, “There may be conditions under which the state says I may kill someone, but my personal belief is that there are no conditions under which I should kill them.”) I would argue that the list of conditions ought to be as clear and objective as possible, eg, home or car invasion. If the conditions aren’t objective — and most SYG laws aren’t — then it’s a matter for a jury considering the specific circumstances.Report

              • Avatar Mike Dwyer says:


                Point taken. Poor word choice on my part. I should have said MAY. I agree that we don’t want the state encouraging people to shoot with SHOULD.Report

              • Avatar Mike Schilling says:

                I doubt that. I’m as anti-gun as anyone here, and I believe 100% in self-defense. That certainly includes a won stopping her children from being kidnapped. This shooting is nothing like an example of self-defense, nor is there any actual evidence that Trayvon Martin was either.Report

              • Avatar InMD says:

                I can’t imagine a system of criminal justice in which someone couldn’t be prosecuted in theory for killing someone, justly or not. Even in Florida charges could have been brought. I said below that I think something like this should be handled by a jury, or at least a prosecutor should be able to put it in front of a jury.

                If the issue is really protecting people like the mother then it can still be done without the authorities being pushed to shrug their shoulders at all borderline cases. I don’t prefer SYG but I also don’t see it as utterly satanic like some do. Plenty of SYG states have exceptions for situations like this, where the person claiming self-defense had a part in instigating the conflict. My understanding is that not addressing that issue makes Florida an outlier among SYG jurisdictions.Report

              • Avatar Jaybird says:

                Well, understand that SYG resulted from overreach from police and prosecutors.

                A guy shoots a carjacker and has charges brought against him.

                The public says “Charges? THEY SHOULD BE GIVING HIM A MEDAL!”

                And, next thing you know, you’ve got a map like the one I linked to.Report

              • Avatar InMD says:

                I get that’s the justification for them and that you can indeed find really absurd prosecutions. What I’m skeptical of is that they were enough of a problem to reconfigure the way self defense is handled in most of the country has. I’m open to being convinced otherwise but I’d want to see numbers as opposed to anecdata, and definitely not anecdata from the crazy law and order crowd (I know that is not you).Report

              • Avatar Jaybird says:

                Well, I’m back to the question: Are we looking at this like a machine or like a moist ball of emotions?

                If we want to look at everything dispassionately, we’d probably come to a conclusion that we need something like a Castle law, we probably can see why we’d extend the Castle law to a vehicle or a place of employment, but we would end it there.

                Stand Your Ground is a bridge too far. Duty To Retreat is a strawman that nobody is arguing for. But something like the shooting that inspired this post is something that DAs ought to have enough discretion to prosecute.

                If we’re looking at it like a moist ball of emotions, we’d probably get a better sense of what the law is going to look like in 10 years, though.Report

              • Avatar pillsy says:

                OK, but lots of people in this very comment and elsewhere are arguing that Drejka maybe did something wrong, but not so wrong that it should be criminal.

                If I’m going to be sharing a society with those people (I am), and those people are going to have access to guns (the Constitution says so), well, I really, really don’t trust them to be making broad judgments that effectively can’t be reviewed by law enforcement, which is what FL SYG law is trying to do.Report

              • Avatar Jaybird says:

                Well, then what?

                Change the law?
                Treat it like a rhetorical Total War and figure out some devastating argument that makes people who believe in SYG laws socially toxic to the point where they’ll surrender unconditionally?
                Treat it like a rhetorical Missionary opportunity and figure out some way to convert sufficient people to your side and then change things via the hearts/minds route?Report

              • Avatar Chip Daniels says:

                Yes, no, yes, and yes.
                But not necessarily in that order.Report

              • Avatar Jaybird says:

                Personally, I think that moving the law back to Castle and extending Castle to vehicle and place of employment is something that is achievable.

                Do *NOT* argue for Duty To Retreat. That’ll be a loser.

                Just play up the “Nobody is arguing that you have a Duty To Retreat! We believe in self-defense! We just don’t believe that you’re allowed to murder someone who is upset that you’re yelling at his significant other and your children!”

                Whenever they argue against you as if you’re arguing for a Duty To Retreat, fall back and say that you support Castle laws and even extending Castle laws. You’re not talking about those. You’re *ONLY* talking about SYG.Report

              • Avatar Oscar Gordon says:

                I think you can talk about a Duty to Retreat, but you need to spell out what that means. Part of the problem, when it has been a problem, is that the Duty was subjective. It’s always easy after the fact to decide a person could have retreated further, it’s not so easy to know that in the moment.

                Or perhaps phrase it different and call it a Duty to De-escalate.Report

              • Avatar Jaybird says:

                Eh, I don’t think so. It’s too vulnerable to someone bellowing “WHAT ABOUT THE DUTY TO NOT MUG SOMEBODY? IS THERE A DUTY TO NOT MUG SOMEBODY?!?”

                And now you’re in the weeds.

                Duty to De-escalate works. That could work.Report

              • Avatar Marchmaine says:

                Maybe in public there’s neither a duty to retreat nor a right to stand your ground, but always a right to self-defense that passes the reasonable person standard… sometimes as determined by a DA and sometimes as adjudicated by a judge and jury. Castle Laws are Castle Laws there is no Castle in this case.

                Further, adjudication of a homicide is not litigation of the 2A each and every time. The “if he/she didn’t…” regression is infinite.

                Those are my take-aways from the thread.

                I guess I agree with Sam (someone take note) that the subjective standard of the actor is the grave error… and I’ll add that this seems to be the substantive error of most Police cases… the standard ought never be some unknowable “feeling” that an unknowable subject had at an un-re-creatable moment; the standard always has to be whether the action is justifiable to a reasonable other. If in the case of Police/Military we allow that the “other” is someone similarly trained for these circumstances… then that would be a start.

                {Whether the Police/Military would always exonerate, then that would need to be assessed separately}.Report

              • Avatar Stillwater says:

                Maybe in public there’s neither a duty to retreat nor a right to stand your ground, but always a right to self-defense that passes the reasonable person standard…

                That’s the case in Florida right now. Zimmerman didn’t appeal to SYG laws in his defense, and my guess (fwiw) is that Drejka won’t either, if he’s charged. And on that last point, that Drejka hasn’t been charged, I keep going back to what Oscar said at the beginning of this thread, that prosecutorial discretion plays a big part in how these issues are handled within a state and may account for the differences across states. I also wonder how shifting the burden of proof from the defendant to the prosecution might account for Drejka still remaining uncharged. As it is right now in Florida, a person who uses lethal force merely has to make a prima facie claim of self-defense to qualify for immunity from prosecution, one which prosecutors must overcome with clear and convincing evidence. Given the statutory language and precedent in FL, it’s pretty east to conclude that the prosecutors governing the Drejka case have concluded that they most likely can’t meet the burden of proof, and have recommended that the cops don’t file charges.

                Seems effed up to me. Here’s an interesting article on the current state of play wrt the 2017 change.Report

              • Avatar Oscar Gordon says:

                I’m fine with a person making a pre-trial motion of self-defense that the DA has to overcome, but as I mentioned elsewhere, clear & convincing seems a high bar. Strikes me as trying the case before the trial.Report

              • Avatar Stillwater says:

                From the above linky:

                Before the 2017 change, the Supreme Court had ruled that defendants had the burden of proof in pre-trial hearings to show they should be shielded from prosecution. But with backing from groups such as the National Rifle Association, lawmakers shifted the burden from defendants to prosecutors to prove whether self-defense claims are justified. By placing the burden on prosecutors, the new version of the law could help at least some defendants in “stand your ground” cases.

                Right now the FL SC is considering making the change retro-active.


              • Avatar Stillwater says:

                Strikes me as trying the case before the trial.

                Yes, this. Agreed.Report

              • Avatar Jaybird says:

                Eh, this strikes me as vaguely healthy.

                More points before the trial to have it tossed out are better than fewer.

                If anything, we should be irritated that a good DA could get a ham sandwich indicted if he were so inclined.Report

              • Avatar Stillwater says:

                Eh, this strikes me as vaguely healthy.

                Glockton probably doesn’t think so. Most of us in this thread don’t think so either. I thought you agreed too.Report

              • Avatar Jaybird says:

                Wait a month and when we’re talking about the horrible prison system, we can cry out at the injustice of the justice system and how its awful that it chews up anyone who happens to be thrown into it, remember this thread.Report

              • Avatar Stillwater says:

                Will you take both sides of the argument on that issue as well?Report

              • Avatar Road Scholar says:

                Well actually that’s pretty much how civil forfeiture works.Report

              • Avatar Oscar Gordon says:

                Like I said, I’m fine with requiring the DA to poke serious holes in a self defense claim before he can start picking a jury for his sandwich, but (and again, IANAL) clear and convincing evidence seems a high bar . That language strikes me as not ‘evidence such that the state could win’, but rather ‘evidence that the state will win, barring a serious upset during the last 10 minutes of today’s episode’Report

              • Avatar Marchmaine says:

                Thanks I saw your comment above… I guess I still feel like I’m navigating common law middle ground which is to say that even if your defense is Self-Defense, it isn’t an immunity from prosecution defense; it is a reasonable standard defense that still requires an inquiry and determination by either DA, Judge, or Jury. Legal guidance could be that Self-Defense could be self-evident to the DA and the courts and the inquiry could be curtailed… and Castle Laws could aid in that as well with secondary mitigating factors; but scrutiny and inquiry in every homicide seems a minimum standard.

                Plus a secondary critique of the statute which is written such that the subject’s state of mind at the time is the key determining factor; that’s a bad law in my opinion… and from what I’m reading is probably the crux of the matter since the DA has to overcome not a reasonable person standard, but attempt to prove that the Subject couldn’t possibly have in fear of immanent death/grave bodily injury.

                The subjective standard seems to me the biggest issue, not SYG, Duty to Retreat, 2A, or Police malfeasance. Start there.

                So, I’m kinda agreeing with you that I think the laws are wrong and also partly agreeing with @jaybird that sometimes laws are written for meta-purposes and if we want to get better laws, then let’s step away from the proxy/meta arguments.Report

              • Avatar Morat20 says:

                Well, understand that SYG resulted from overreach from police and prosecutors.

                Did it?

                How many cases were brought? How many went to jail? How bad was this overreach? Where did it start? What state?

                I mean I *hear* this, but I’m struggling to actually recall when this happened. Was it a singular case, and someone went to jail? Was it a raft of cases? Was it multiple states wherein prosecutorial guidelines were to prosecute everyone, regardless of whether they had a credible self-defense claim?

                What state had such rogue prosecutors and such a high rate of self-defense that caused this law? Which spread to multiple other states?Report

              • Avatar Jaybird says:

                Ironically, Florida was one. There’s a case here that had a lot of national attention. (Trigger Warning: Domestic Violence)

                Believe it or not, it was once seen as a Feminist issue.Report

              • Avatar Morat20 says:

                So just the one case? I’m not asking “Where there cases where self-defense should have carried the day and didn’t” — of course there are edge cases and weird results. I’m asking for this vast wave of overreach that required a massive overhaul of self-defense laws.

                You quoted a 1999 appeal — which actually did somewhat address an issue with Castle Doctrine (wherein you engage in self-defense against cohabitants, among a few other things) for a 1994 crime to justify a law passed in 2005.

                An appeal which, in fact, expanded the Castle Doctrine some.

                Now I know SYG was an NRA backed baby, and that after Florida passed it there was a big NRA push to multiple other states — I was just curious why Florida passed it in the first place, and a 1994 case doesn’t seem…pressing enough to justify that sort of sweeping change.Report

              • Avatar Jaybird says:

                Is this one of those things where you’re asking me to spend an hour doing research and I’m going to find, oh, three more cases and you’re going to say “oh, you only found three cases, huh?”

                I don’t want to play that game.

                Here’s a Slate article from 2012. It talks about where Castle laws came from.Report

              • Avatar Morat20 says:

                I know where Castle Doctrine comes from. We’re not talking about that. We’re talking about SYG laws and your initial claim. This coversation started when you said:

                Well, understand that SYG resulted from overreach from police and prosecutors.

                Surely you can point that out. One case highlighting a single, small flaw in the Castle Doctrine (how to deal with cohabitants) where, IIRC, the shooter won her appeal is not “overreach from police and prosecutors” any more than me heading out to get ice cream is a sign of a massive new American craze for cold desserts.

                You made the claim, I’m simply asking you to show where that view of the history of the SYG law come from? I know the first SYG law was from Florida, and the NRA quickly pushed it to numerous other states — but none of the contemporary debate seemed to highlight such overreach. (In fact, it seems law enforcement wasn’t a real huge fan for, well, exactly the reasons here).

                Asking you to point out some sources for your specific claim is not “playing a game”. It’s a pretty big claim to toss out there, and somewhat central to the debate.Report

              • Avatar Maribou says:

                @morat20 @jaybird The first stand your ground law was in Utah in 1994.

                I think any version of explaining the history of it that doesn’t reference ALEC is incomplete. But I also think any version that doesn’t dig into at least what ALEC was using as an excuse for it is incomplete.

                I haven’t gotten anywhere digging – too much info, too sleepy to make good research strings – but I did find out about a whole (very leftist-signalling in its jargon) book on the subject by Caroline Light, a historian, entitled Stand Your Ground.

                Should I bring myself to read it, I shall report back.Report

              • Avatar Jaybird says:

                Is pointing out and article that claims that the appeal in question was “transformative” sufficient?

                Because I provided that already.

                And playing down the issue as being between “cohabitants” is… well. It’s not how it was played back in the 90’s by the people who were championing the defendant.

                It was the people arguing that she needed to be prosecuted to the fullest extent of the law that referred to her as that.Report

              • Avatar Jaybird says:

                I keep finding a number of references to it happening, the big ones always quoting “Sandy Krasnoff, director of Victims and Citizens Against Crimes”, but they never name the times that it happens. They just quote him as saying that the victims were “charged initially for defending themselves.”

                Even the people who are against the extension of Castle laws to vehicles don’t question what he says… but I can’t find anything that refers to what he’s referring to. I just find him saying that over and over.

                I’m pretty sure that that’s the thing that I remember from the 90’s… but, for the life of me, it seems to be hearsay based on quoting the type of person who would end up being in charge of a group called “Victims and Citizens Against Crimes”.Report

              • Avatar Morat20 says:

                Smells like astroturf then.

                Because if all we’ve got is a single case highlighting what is (in the grand legal scheme of things) a small flaw in Castle Doctrine — two if you count your personal vehicle — both of which had already been remedied as “vast prosecutorial overreach” that led to, quite literally, a massive change in self-defense legal doctrine (doctrine that goes back centuries) — and then a whole bunch of references dating back to a single guy, well you don’t actually have a case for “vast prosecutor over-reach”.

                Two cases out of all the self-defense cases in America aren’t a vast anything. Much less ones wherein the core “issue” around what is and isn’t legitimate self-defense was amended to address the problem.Report

              • Avatar Jaybird says:

                Well, my solution, again, is to move the law back to Castle and extending Castle to vehicle and place of employment is something that is achievable.

                And react with hostility and resentment whenever anyone suggests that mere Castle (extended) is equivalent to Duty To Retreat.Report

              • Avatar pillsy says:

                I really don’t see how resolving issues like that required the incredibly overkill (so to speak) of the Florida SYG law, or any SYG law for that matter.Report

              • Avatar Jaybird says:

                I think it became a litmus test.

                “Do you support this? If you don’t, you’re not a feminist!”

                Sort of a 1990’s version of the Straw Ban and environmentalism.Report

              • Avatar Maribou says:

                @jaybird Given that Utah was the only state to have such a law until 2005, and that ALEC was *heavily heavily heavily* involved and feminists are (understandably) very wary of ALEC, any narrative that attempts to explain the situation without including ALEC’s role is missing a key factor.Report

              • Avatar Jaybird says:

                The law had precursors, though. Louisiana’s “shoot the carjacker” law was helped by Miss Louisiana being carjacked and talking about how afraid she was.

                We wouldn’t have gotten to SYG without wandering through “shoot the carjacker”. We wouldn’t have gotten to “shoot the carjacker” without wandering through the Castle doctrine.Report

              • Avatar Maribou says:

                @jaybird The castle doctrine dates to the 17th century and was baked into the mix before the US became a country.

                The carjacker stuff settled down into “ok, probably your car is part of your ‘castle’ now too”.

                If you’re going to explain 2005 and the couple years immediately following, you’d be just as reasonable to talk about 9/11, and nearly as reasonable to talk about the election rhetoric of 2004, as you are to talk about carjacking.

                Heck, if you got into that stuff you might also end up talking about ALEC and their relationship to the NRA…Report

              • Avatar pillsy says:

                The argument that you can’t reasonably retreat from your home or vehicle is not at all crazy.

                But without the Duty to Retreat being the general case, you turn potentially lethal violence from a last resort to a first resort.Report

        • Avatar InMD says:

          This is my primary problem with SYG. You said it more succinctly above. It encourages violence by rewarding the first person to use deadly force in situations where both parties could conceivably invoke the right. I think duty to retreat and a castle doctrine (basically common law approach) make the most sense from a policy standpoint but if there’s going to be SYG I find it baffling that it doesn’t except instigators of a conflict.Report

          • Avatar Road Scholar says:

            It encourages violence by rewarding the first person to use deadly force in situations where both parties could conceivably invoke the right.

            Which strongly encourages everyone to be armed, which should be taken as a strong hint as to the true purpose of these SYG laws.Report

          • Avatar Dark Matter says:

            …the first person to use deadly force in situations where both parties could conceivably invoke the right.

            Is that correct? Maybe we are overthinking this?

            Could the Girlfriend have shot this guy? Could the Boyfriend have simply shot him?Report

            • Avatar Jaybird says:

              “He was screaming at my woman and our children. I was in fear for their safety. If he was just yelling at me, that’d be one thing. But our children were there!”

              The question is when you start the timer on the altercation.

              Do you start it with the shove?
              Do you start it with the yelling?
              Do you start it with the parking in the handicapped parking spot?Report

              • Avatar Dark Matter says:

                The question is when you start the timer on the altercation.

                Physical violence or threat thereof is normally a pretty good starting point.

                I’d think even SYG doesn’t let you shoot anyone with whom you’re arguing.Report

              • Avatar Jaybird says:

                Physical violence or threat thereof

                Could a reasonable person see a man screaming at his significant other and his children an example of a threat of physical violence?Report

              • Avatar Stillwater says:

                There’s a lot to dislike about the reasonable person standard, but I think it works perfectly in the case of being stalked thru the streets. A reasonable person would, indeed, find that threatening. So I’m always amazed when SYG defenders argue for Zimmerman’s innocence by claiming he didn’t initiate the altercation.Report

              • Avatar Stillwater says:

                Add: this is a response to the claim that the first person to make physical contact is the aggressor, which strikes me as pretty obviously wrong as a general principle.Report

              • Avatar Oscar Gordon says:

                The reason it doesn’t work with Zimmerman is because Martin had successfully retreated, and then returned to confront Zimmerman.Report

              • Avatar Morat20 says:

                What part of Florida law says that mitigates self-defense?

                because as best I can tell, Martin v. Zimmerman is an excellent case of two people “defending themselves” against the other. And legally, the winner is off the hook.

                After all, both parties had reason to be afraid of the other, don’t you agree? Even according to Zimmerman’s tale.Report

              • Avatar Stillwater says:

                It doesn’t work for what? As a legal defense? Legally, it doesn’t matter who started it, who circled around who. As a “reasonable person” justification for feeling threatened enough to engage? Sure it does.Report

              • Avatar Oscar Gordon says:

                I linked to the statutes, go read them.Report

              • Avatar Stillwater says:

                I have read em. I read em contemporaneously with the event and I’ve re-read most of today. If Martin retreated (as you say) by eluding Zimmerman before the final confrontation, then a) following someone (stalking them) constitutes a threat from which they could (or perhaps even legally *should*) retreat, and b) Martin wasn’t the initiator of the conflict, Zimmerman was, since he was the person engaging in aggressive behavior which Martin, by your lights, retreated from. But that’s not how the case was decided. The case was decided (IIRC) by concluding that Zimmerman had a right to be in the place he occupied while following Martin, had not engaged in any illegal behavior while doing so, and had a right to defend himself from the ensuing confrontation. There was no mention of Zimmerman’s action constituting a threat from which Martin did or ought to have retreated.

                More importantly tho, once the scuffle rose to the level of fear of bodily harm by either of the two, the only condition upon which being the aggressor (as Martin was accused of being) defeats a legitimate claim to self-defense is if the person did NOT exhaust every possible means, presumably contemporaneously with that event, to avoid the imminent danger. What Martin did twenty minutes prior is irrelevant.Report

              • Avatar Stillwater says:

                Or to flip it on its head, you seem to be arguing that Martin had retreated from Zimmerman, which implies he perceived a legitimate threat, but then later, when he acted on that threat by confronting Zimmerman, it was Martin, and not Zimmerman, who surrendered a right to self-defense, even tho Zimmerman was the aggressor.

                Which in one sense I like: at least we agree that Zimmerman was the aggressor and Martin had a right to defend himself.Report

              • Avatar Oscar Gordon says:

                This. And subsequently complicated by cultural implications (Martin didn’t call the police, probably because he didn’t trust that they’d take him seriously, or worse, they’d arrest him).

                This is one of the problems as I read it, that the only concern with retreat is that their is no duty to do so in the face of danger, and not the responsibility once a retreat is effected.Report

              • Avatar Stillwater says:

                I was reading up on harassment and found the following statute in the Florida code.

                784.048?Stalking; definitions; penalties.—
                (1)?As used in this section, the term:
                (a)?“Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.
                (b)?“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.
                (c)?“Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.
                (d)?“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
                (2)?A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

                I have no idea if those laws were on the books when Zimmerman was stalking Martin, but if they were it’s clear why his legal team avoided using SYG as a legal defense: it only applies to someone who has a right to be in a place and isn’t committing a crime. And arguably, the same situation applies to Djerka in that he was (arguably) harassing Glockton’s wife. So his defense, if he has to make one, probably won’t appeal to SYG either. The question, then, is maybe this (well, one of them anyway): why is Florida’s self-defense statue so broad as to NOT include the illegal conduct of the instigator of a conflict resulting in the use lethal force?

                All that to say that insofar as Djerka isn’t charged, the problem with Florida isn’t its SYG law but its expansive self-defense laws.Report

              • Avatar Stillwater says:

                Or, as you said up top, prosecutorial discretion (scare quotes!)Report

            • Avatar InMD says:

              As applied to this situation? I have no idea, but thats part of why I don’t like the policy. Say everything goes the exact same way but the girlfriend is also a CCW holder. Drejka pulls his gun and points it at McGlockton and she pulls hers and shoots Drejka. You could make a strong argument that would also be justified. That outcome wouldn’t be based on reason either it’d be last person standing wins.Report

              • Avatar Dark Matter says:

                After he pulled the gun I’d think self defense would apply so yes, she could shoot him.

                Before that, afaict, only the Girl/Boy friends broke the law. Her by illegal parking and him by roughing up the guy. That last is very problematic.Report

              • Avatar Chip Daniels says:

                So doesn’t this point out the absurdity?
                Drejka kills someone and walks away free.

                Had the girlfriend possessed a gun, she could have executed him on the spot, and herself walked free.Report

              • Avatar Oscar Gordon says:

                This is one of the reasons my instructor encouraged us to not start shit while armed. Once the gun is drawn, things will absolutely go pear shaped.* Don’t let them go pear shaped if you can avoid it, because the outcome will rarely be a good thing.

                *A lesson I wish police would take to heart.Report

              • Avatar Mike Dwyer says:

                I once read that the samurai code regarding their swords was, “Never drawn except to be used, never used except to kill.” That rule was meant to protect non-samurais but also to remind samurais of what their actions would lead to.Report

              • Avatar Morat20 says:

                Sadly, owning and carrying a gun doesn’t take a decade plus of training. Just a few hundred dollars and a few hours of classes, depending on your state.Report

              • Avatar InMD says:

                I agree that the facts of this case aren’t easy. McGlockton committed a battery that wasn’t justified. But there’s also a reasonable argument that Drejka’s response was an unjustified overreaction and he certainly had no business confronting the girlfriend. Not sure if FL recognizes it but there’s a doctrine called imperfect self defense that might come into play.

                There will always be hard calls. My opinion is that those kinds of cases need to be handled by a jury. That Florida’s approach to SYG seems to discourage that is another big strike against it IMO.Report

              • Avatar pillsy says:

                Parking in handicapped spots is a jerk move, and illegal, but doesn’t actually pose a threat to life and limb.Report

              • Avatar Dark Matter says:

                Parking in handicapped spots is a jerk move, and illegal, but doesn’t actually pose a threat to life and limb.

                The video makes me wish I were an expert in use of force. It’d be nice if we had sound so we could hear what the boyfriend was hearing (i.e. was the shooter manifesting as crazy or just arguing with the gf). With deeply imperfect information, my impression is drawing and pointing the gun was ok, but there’s a several second gap between that and pulling the trigger where I can’t tell what the bf is doing.

                He’s not clearly attacking and he’s also not clearly backing down. There’s room for anything from him-going-for-a-piece to an “oh-shit please don’t shoot me” expression on his face, but we don’t have that angle.Report

              • Avatar Chip Daniels says:

                And so, when the facts are ambiguous, the tie goes to…?

                When the government wants to kill you, and the facts are ambiguous, we have a clear ethos that demands the tie go to the defendant.

                He might possibly be a killer, but we don’t really know, so we electrocuted him just to make sureReport

              • Avatar Dark Matter says:

                And so, when the facts are ambiguous, the tie goes to…?

                Intuitively I’d think it goes to not pulling the trigger. 😉

                I seriously don’t trust my intuition here, and I’m not sure what I’m seeing. He decided to kill him before he pulled the gun and it just took a few seconds to pull the trigger? Is there a “normal” for a civilian shooting someone? Does he have serious mental health issues (as has been suggested)?

                Ideally we’d have more “facts” than are in front of us… and the police have a rep of not releasing everything.Report

      • Avatar Murali says:

        Most of what I’ve read on the ethics of the use of defencive force say that the dominant position among moral philosophers is that the duty to retreat is a moral obligation. Even when the other guy is in the wrong. The major points of disagreement are about exactly how much risk others must pose to you before you are allowed to harm them.

        Edit: well not really. the major point of disagreement is about how liability, proportionality, lesser evil and necessity considerations fit together. No one actually bothers to spell out some formula for proportionality or necessity.Report

        • Avatar Morat20 says:

          I’m pretty sure that most people are pretty freaking aghast at the idea of a law that lets you start a fight, then kill a guy when you start to lose.

          Unfortunately, that’s what we have, and for some reason people keep defending it.

          I mean I can see how, in a perfect world, it’s a workable law. In a perfect world, armed people wouldn’t start fights. In a perfect world, armed people would never escalate to lethal force without true need.

          Unfortunately, the laws are in the real world, which is far from perfect, and I can’t help thinking that the SYG law is not just horribly abuse-able, but absolutely crazy law.

          Under SYG, two people carrying guns can start having an argument and jump straight to a freaking shoot-out, and neither one be legally culpable because they can clearly claim they were in fear for their life, because the other person was angry and armed.

          That is an absolutely absurd result, but appears absolutely consistent with SYG law and how it’s been applied.Report

          • Avatar Maribou says:

            @morat20 And in Florida, as of 2017, they appear to be not only not culpable, but *immune from prosecution*, ie the burden has been shifted to the prosecution to prove they could even be tried.Report

  8. Avatar Michele Kerr says:

    ” “I have a gun and I’m going to shoot you if you don’t move your car right fishing now””

    There’s no evidence was saying that. He wasn’t threatening her in any way. So why invent any such claim, much less repeat it twice as if it has anything to do with this case?

    “I suspect McGlockton would have been okay with dying instead of having that guy kill his girlfriend or the kids.”

    It’s incredibly clear from the video that McGlockton had no fear that the guy was going to shoot anyone prior to him pulling out the gun. He was slamming down an idiot who was arguing with his girlfriend.

    “The man was armed,had a history of threatening of people, and was willing to kill. There is no way the girlfriend owed him her retreat, especially by Florida’s standards. Her life was threatened.”

    The girlfriend knew none of that. All she knew is that she was parked illegally, and someone was pointing out her illegal behavior. He was clearly standing an appropriate distance away and not physically threatening her in the slightest. He also didn’t have “a history of threatening people”. The newspaper interviewed someone who *said* he threatened him, but without a police report that’s just some dude on the street.

    She was the offender. If you want to argue someone has a duty to retreat, here are your choices:

    1. The shooter, who until he was knocked to the ground had done nothing even remotely illegal or threatening, other than be a weird dude who hates people parking in handicapped zone.

    2. The girlfriend, who had parked illegally and then argued with a guy who asked her to move.

    3. The boyfriend, who came charging out of the store, ran to the car, and without taking a single second to ascertain what was happening, violently knocked down someone standing a clear distance away from his girlfriend.

    The guy who was knocked violently down having done nothing illegal is the only one with no duty to retreat . As I said, if he’d been killed by being knocked down, the boyfriend would have been charged with manslaughter with very little if any defense. (although then I’m sure the girlfriend would be inventing some threat for her testimony, which she clearly sees no need to do here.)

    As the cop said: “What’s relevant is not whether this guy’s a good guy, nice guy, or whether he’s a jerk, or whether he’s a thorn in people’s side and what he’s done, whether it’s three weeks ago, three months ago or three years ago,” the sheriff said. “What’s relevant and the only thing we can look at here is was he in fear of further bodily harm.”

    “He only backed off when Drejka pulled a gun. ”

    He didn’t even do that much, really. Barely took a step back. If he’d instantly started running away, or dropped to the ground, Drejka probably would have been charged. But yes indeed, to the rest of your comment.Report

    • Avatar Stillwater says:

      She was the offender.

      Wait. We’ve got one guy who’s dead and another guy who pulled the trigger but SHE was the guilty party? Well, lock her up.Report

    • Avatar Maribou says:

      @michele-kerr As I made quite clear, my objection was to the word “regardless” and the implication that there were no possible threats that would justify attacking someone like that. I was talking hypotheticals, which is why I used hypotheticals.

      Also, as a technical aside, if you @ people, it will be a lot clearer whom you are addressing, and when you switch to a different person – as well as most likely notifying people you’re commenting specifically on something they say.Report


    A new JAMA study suggests their observations were right, at least in Florida. It finds homicides in the state spiked 24% from 82 per month from 1999 to October 2005, when Florida’s “Stand Your Ground” law was passed

    Young white men, seeking the trappings of adulthood and ‘manliness’, are putting themselves at state-sponsored risk. Many of these deaths are white guys.

    These findings suggested a statistically significant increase in homicide by firearm for whites (45.1%)

    By all means, black lives matter is an important movement but people need to understand white folks are putting themselves at greater risk in the name of the 2nd Amendment, freedumb, and the pipe dream of being a Great Whtie Hope with a 9.

    Addendum: The RAND Corporation weighs in on SYG laws.

    Based on these findings, we conclude that there is moderate evidence that stand-your-ground laws may increase homicide rates but inconclusive evidence for the effect of stand-your ground laws on other types of violent crime.


    • Avatar Mike Siegel says:

      Like a lot of gun research, the JAMA study seems very dubious. Other states have SYG laws and have not seen such an increase. The assumption is that correlation is causation and nothing else drove Florida’s homicide rate up. Looking at the data, there was a sudden rise in 2005 by 300 murders per year. It has declined since then, albeit slowly. I think there’s something going on here beside SYG, which is rarely invoked. If I had to wildly guess, I would point at the opioid crisis, which has been driving a LOT of negative health trends over the last decade.Report

  10. Avatar Oscar Gordon says:

    Back when I first got my permit and took the class, one of the things the instructor suggested to us was that we should adopt a mindset that as a citizen carrying a gun, you temporarily relinquish the right to start shit whenever armed. You can’t play citizen cop, you can’t attempt to detain, or harass, or confront people. Everything you do must be focused toward de-escalation, and if you can’t do that, you probably shouldn’t carry a gun.

    Both Zimmerman and this guy failed that. They tried playing citizen cop, and were confronting people they had a weak case to confront.

    Not sure how one would put that into the law, but IMHO, that is the mindset you must have if you carry.Report

    • Avatar Mike Siegel says:

      Yep. And most CC holders do act that way. They have very low rates of homicide. Clearly something was wrong with this guy.Report

      • Avatar Stillwater says:

        Clearly something was wrong with this guy.

        It’s like he was murderous or something. 🙂Report

      • Avatar Oscar Gordon says:

        Exactly. This is (possibly? see below*) the weakness of the FL SYG, in that (IIRC) there is no exception for being an instigator of a confrontation (nor any definition of what constitutes instigating a confrontation).

        I’d have to read the statutes, but I believe a lot of other states spell it out pretty clearly that you can not be an aggressor/instigator in a confrontation. Engaging in a confrontation is not sufficient to sink your self defense claim, but it certainly weakens it and increases the chance that you will go to trial.

        *The Reason article I linked above says the law has a ‘Reasonable Person’ standard and not an individuals perception standard. If true, then the PD & DA are delinquent in their duty, or they really do think a reasonable person would believe their life is in mortal peril from a single push**. As evidence that the law is not as subjective as they suggest, let’s recall the killing of Jordan Davis by Michael Dunn. He claimed he feared for his life because he saw a gun. That didn’t carry the day for him.

        **Yes, a single push could kill a person, but after surviving the push to the ground, the mortal peril is past, and you can’t act on what might have happened a moment ago.Report

    • Avatar Dark Matter says:

      a mindset that as a citizen carrying a gun, you temporarily relinquish the right to start shit whenever armed. You can’t play citizen cop,

      This makes an amazing amount of sense… so much so we might want to codify it.Report

  11. Avatar Koz says:

    More than anything, this was a profoundly depressing sequence of events. Frankly, no one looks good in this video, but it’s the culmination of small mistakes and misguided tendencies which exploded into a fatal outcome which should never have happened. For me that’s a bigger deal than whether the shooter goes to jail or not.

    That said, I think the shooter is guilty and ought to be charged with manslaughter, stand your ground law or otherwise. In fact, I don’t think stand your ground is even really relevant. The legal argument is going to be self-defense anyway, and in this case it really doesn’t depend on the duty to retreat, or the lack of it as the case may be.Report

  12. Avatar Chip Daniels says:

    This points out how oppression in societies usually works.
    There are rarely laws saying “This specific group of people have no rights”;

    Instead, there is a widely understood consensus as to which groups were favored, which were not, whose lives mattered and whose did not.

    SYG laws provide a convenient vehicle to exercise this group bigotry, since it places the discretion entirely in the hands of the dominant culture as to whether a threat was justified or not, and provides an incentive to make sure the other person is not alive to provide testimony.Report

  13. Avatar Michele Kerr says:

    I think it was @stillwater who said: “My problem with these types of laws is that being the instigator in a physical altercation is excused if a person subsequently legitimately fears for their own life. ”

    Problem or not, that strikes me as exactly right. This is the standard for self-defense. Self-defense doesn’t include “well, the reasonable juror will have to decide whether the reasonable person should have been in that position.”

    The only other standard that the government might adopt is the one @oscar-gordon describes from his gun class: “we should adopt a mindset that as a citizen carrying a gun, you temporarily relinquish the right to start shit whenever armed. ”

    But please notice the “should” there. It’s not a legal requirement. And my guess is it never will be, because it’s a ridiculous requirement.

    I mean, look at this case. Most of you are taking what to me is the obviously absurd position that the shooter started this. Meanwhile, you’re mocking the very idea that the boyfriend started it. Mock away, but as someone said, the decision (thus far) not to charge is almost certainly based on the realization that the boyfriend started it. And if they charge at this point, it’s still clear they feel that way, but the politics have mandated a different approach. The jurors won’t need to take that position, though.

    The only possible standard is self-defense. And for those of you who think that’s ludicrous, step through the different possibilities:

    1. Drejka asks the girlfriend to move her car. He is standing a reasonable distance from the car, not touching the car. Girlfriend feels threatened, pulls out a gun and shoots Drejka

    2. Boyfriend sees Drejka arguing with his girlfriend, still standing a reasonable distance from the car. He runs up and shoots Drejka.

    3. Drejka is asking the girlfriend to move the car when suddenly he is flung violently to the ground, with no warning, by a much larger, younger, man. He pulls out a gun, guy barely moves, he shoots.

    If Drejka’s “starting shit” was legitimate grounds of offense, the other two situations would sound reasonable, instead of the instant arrest cases they are.

    I’m not particularly happy about this, and I think it’s probably why we should move to open carry laws, so everyone can see who has what. I’m not particularly happy about open carry laws either, but I don’t see any way around it because, while I think the commenters here are being rather absurd in not seeing a reasonable standard applied here, I also see what Stillwater says as being where this all goes. Unless the shooter is engaged in a crime, if it’s just a situation of two people getting into a physical altercation, I think it’s going to end up being either party can claim self-defense.Report

    • Avatar Stillwater says:

      Mock away, but as someone said, the decision (thus far) not to charge is almost certainly based on the realization that the boyfriend started it.

      Not a lawyer, but I think that’s categorically wrong. According to the law, who started it is irrelevant. The only relevant criterion is that if an altercation rises to the level of (perceived) threat of bodily harm, a person is justified in using lethal force in self-defense.Report

  14. Avatar Maribou says:

    “If Drejka’s “starting shit” was legitimate grounds of offense, the other two situations would sound reasonable, instead of the instant arrest cases they are.”


    This claim begs the question of your argument here, by presuming that shooting someone would be a reasonable response to “grounds of offense”.


    Also I finally watched the video and there’s no *way* shooting someone would be a reasonable response to that push.

    Also also, to the best of our knowledge at this time, this guy literally spent a significant time hanging around harassing people about this stuff and the store owner had called the cops on him several times for threatening people over a parking space. Not just “one eyewitness” who claims to have been threatened with being shot, but the owner of the store where the shooting took place, saying this guy had a specific history of starting shit about this issue.Report

  15. Avatar Michele Kerr says:

    “harassing people about this stuff” means “insisting people follow the law”. Not my cup of tea, but there you go. And the guy’s police record has been released; was there any mention of him harassing people? Not that any of that matters. What matters legally, I think, is that he was standing a reasonable distance from the car and was asking the woman to move her car when he was suddenly shoved–not pushed–violently to the ground.

    And clearly, there’s plenty of ways that shooting the guy would be a reasonable response to being shoved to the ground. In fact, I bet if people had no idea of the subject of their conversation, no one would argue that the boyfriend’s behavior of running up to the guy and slamming him to the ground was reasonable.Report

    • Avatar Chip Daniels says:

      there’s plenty of ways that shooting the guy would be a reasonable response to being shoved to the ground.

      Why is being shoved to the ground a valid reason to take a human life?Report

      • Avatar Michele Kerr says:

        Because you don’t wait until you’re dead from the assault to defend yourself.Report

        • Avatar Chip Daniels says:

          What makes a shove a credible threat to life?Report

          • Avatar Jaybird says:

            A shove to the ground?

            If “such things have resulted in death in the past” counts as evidence, there are a couple of stories of deaths that resulted from shoves from the last year or so.Report

            • Avatar pillsy says:

              Dude was already on the ground and, you know, not dead.

              Something that’s already happened to you without serious injury is definitionally not life threatening.Report

              • Avatar Jaybird says:

                If we agree that it was a threat, it turned out to not have been dangerous, could we compare it to “shooting at someone but missing”?

                “The guy shot and missed. Why are you so upset? The altercation was, presumably, over.”Report

              • Avatar Oscar Gordon says:

                Because intent matters. You shoot at someone, there is an implied intent that you meant to hit them and cause grievous bodily harm.

                A shove does not rise to the intent of maiming or killing a person, which is why when a person does die from a simple shove, the charges are not murder, but manslaughter or negligent homicide.Report

        • Avatar Morat20 says:

          So we should give people the right to shoot anyone if they’re afraid. Which of course, means more people are armed, and people are even more reasonably afraid because now they’re facing armed men and women who can kill them with impunity, as long as they can say “But I was scared for my life” with a straight face.

          All of this to replace a law in which is was perfectly legal to defend yourself with deadly force, so long as you had no reasonable way to extricate yourself first.

          Lethal force is now the first resort, rather than the last, with absolutely predictable results — and the bonus topper that the statement “I was afraid for my life” is even more believable thanks to the very law in question!Report

      • Avatar Mike Dwyer says:


        There are plenty of people who are in jail for manslaughter because they shoved someone to the ground on concrete.

        I will also say, the problem we are facing is obviously that it’s very hard to pre-determine every scenario where lethal force is justified. I was just reading last night about a police officer who was assaulted by someone for 5 minutes before help arrived. His K9 was biting the man, he was hitting the man with a baton, punching him and he was still not able to stop the guy until two more officers arrived and even then it took another several minutes. The officer had a broken nose, etc and went to the hospital. etc. He talked about how lethal force was absolutely justified during this encounter (suspect was reaching for his gun, he was unable to subdue him, etc). He chose not shoot the man and he said it was only years of training that taught him to weather the assault until help arrived.

        So we have an extreme example of someone not using a gun to defend themselves and it ending with the attacker in jail and not the morgue. On the other hand, if the officer had not deployed deadly force and the attacker killed him, we would be left wondering what the officer didn’t shoot. It just proves what a subjective, case-by-case discussion this issue is.Report

        • Avatar Oscar Gordon says:

          There are plenty of people who are in jail for manslaughter because they shoved someone to the ground on concrete.

          Sure, but once you have been shoved and remain alive, the justification is past (and since most people who fall to the ground get up and keep going, it’s an exceptionally weak justification – most shoves that kill are freak occurrences, a person is charged because they initiate the event, but it’s still a freak event).Report

          • Avatar Mike Dwyer says:


            I’m with you, but if you are on the receiving end and that appears to be the first in a chain of actions…I can also see why people make the leap in logic. not saying I agree with it, but…

            It would be interesting to hear audio of this encounter. I think that also adds to the complexity. Video only tells us so much. Maybe the answer is body cameras (with audio) for everyone.Report

      • Perhaps what would be helpful is clarifying the terminology within an escalation of force model. There are many variations but most have the same common principles, whether written for police or civilians. I attach a random one that is very typical. The issue with regards to this incident is bodily harm, being assaulted, being shoved down, is not an automatic escalator to deadly force being an appropriate response. Bodily harm would clear the other person to use aggressive defense tactics, or in other words you can hurt the person trying to hurt you to stop them.

        “Stoping them” is a key phrase, both philosophically and legally. To defend yourself you are trying to stop someone from harming you. You only use the force necessary to do so. You should not be “skipping up the chart” to deadly force just out of fear. If you are continually escalating the situation, traditionally that would muddy and in many cases void your self-defense claim. This is were I and others have issue with the language of FL SYG law, it seems to bypass the well established norms for use of force to simply being afraid (at least juries have found that to be the case), which is far too low a standard for use of force. IMO stand your ground as currently being used leans too far on freeing up the weapon carrier from a responsibility of restraint. I understand the stated purpose of it, but this version is not, and has been proven to be, counterproductive. Granted not everyone gets use of force training, but if you are carrying a weapon, you definately have the responsibility.Report

    • Avatar Maribou says:

      @michele-kerr I’ve tried to respond to this comment four times and the site keeps seeing me and Jaybird coming from the same place, thinking we’re therefore the same person, and telling me I’m posting too quickly and I need to slow down.

      I don’t have the patience to retype what I should have saved in notepad at this point, but I think you and I are watching the same tape and seeing two completely different things.Report

    • Avatar Michele Kerr says:

      Jaybird seems to grasp what I’m saying. If you are being assaulted, then you have the right of self-defense. I have never seen what “stand your ground” has to do with anything in this case. Totally not a lawyer.

      Stand your ground, to me, involved a case like this: some crazy dude is shouting and screaming and verbally threatening everyone in front of a McDonalds door, so everyone keeps their distance and uses a different door. One guy decides no, he wants to go in *that* door, and when crazy dude shouts and threatens, pulls out gun and shoots him. Or you see someone robbing your neighbor’s empty house and shoot them.

      The minute you have actually been assaulted, I’m pretty sure stand your ground leaves and it becomes self-defense–as someone pointed out above, that’s why Stand Your Ground was irrelevant in the Zimmerman case, I thought.

      The minute the boyfriend shoved Drejka to the ground, Drejka had every right to defend himself if the danger didn’t appear to diminish. Lawyers who say he didn’t have a right to shoot argue that the boyfriend took a step back–well, more of a step sideways. But it wasn’t clear, and I think that’s why the police didn’t charge him (the DA may decide otherwise). When I said that the boyfriend didn’t instantly put his hands up, drop to the ground, or otherwise grovel, some of you mocked, because for some reason you find it inconceivable to grasp the reality that the boyfriend is the offender. But if he’d done that, and Drejka shot, he’d have been arrested. All the cops have is that ambiguous step back, which isn’t much.

      @pillsy — “Something that’s already happened to you without serious injury is definitionally not life threatening.”

      You don’t even believe that. Imagine the same situation but the boyfriend is cocking his leg back to kick Drejka. Or imagine he’s got a tire iron and is hauling back to hit him.

      So clearly, that’s not true, despite your “definitionally”. The danger has to be clearly over.

      On “danger is over, no threat” side, you’ve got an ambiguous step back or sideways, no other sign. On “danger is still active” you’ve got the fact that the boyfriend charged up and knocked him to the ground without warning, that he’s younger and much bigger.

      @andrew-donaldson – “Granted not everyone gets use of force training, but if you are carrying a weapon, you definately have the responsibility.”

      I don’t think we do. I don’t think there’s a way to define that without running into the right of self-defense. That’s what concealed carry opens up.

      @morat20 — “So we should give people the right to shoot anyone if they’re afraid. ”

      No, we give people the right to shoot someone threatening them if they are in reasonable fear of their lives. Which is what the standard has always been. Stand your ground had nothing to do with that. The new glitch is concealed carry.

      Have any of you seen Hell or High Water? Great movie, and it shows how crazy things will get if everyone around is armed.Report

      • Avatar Oscar Gordon says:

        As someone who has had training on this, I am telling you, @michele-kerr, you are wrong.

        If the events had played out like this, you’d be spot on:

        1) Drejka is being an ass.
        2) Markesis shoves him to the ground.
        3) Drejka draws his weapon
        4) Markesis attempts to close the distance to continue the attack.
        5) Drejka shoots him.

        Four never happened. Markesis sidestepped to clear the line of fire, he did not attempt to close the distance.

        IMHO, the reason this happened is that Drejka was looking for a confrontation, and he was already all worked up internally, from being pissed about the parking space, to being annoyed at the girlfriend arguing with him. Hence he interpreted a ‘furtive movement’ as a threat, and fired. The police may get away with that, but normal citizens should not (the police shouldn’t either, but that is a different argument).

        THIS is why my ‘don’t start shit while armed’ is not ridiculous. Sure, your interpretation of it was, but ‘not starting shit’ does not mean you can’t confront a person, it means you need to remain calm and collected and always working to de-escalate*, rather than not.

        *Seriously, if there was ever a training requirement for being armed in public, de-escalation training should be it, much more than being able to put a bullet in a target at range.Report

        • Avatar Michele Kerr says:

          Oscar, you seem not to understand this:

          “On “danger is over, no threat” side, you’ve got an ambiguous step back or sideways, no other sign. On “danger is still active” you’ve got the fact that the boyfriend charged up and knocked him to the ground without warning, that he’s younger and much bigger.”

          That is, there is doubt as to whether #4 happened. Unlike you, I am allowing for the possibility that it’s open to suggestion, but it’s absurd to pretend I didn’t address the issue.

          And since he wasn’t charged, and the people not charging are actual experts, it appears that your certainty is perhaps unwarranted.Report

          • Avatar Maribou says:

            “the people not charging are actual experts”

            The person speaking for ‘the people not charging’ – the local sheriff – says there is no choice but to not charge, regardless of his own preferences, because of Stand Your Ground laws in the state of Florida. The same laws you claimed elsethread aren’t relevant to the situation.

            Still feel so confident in his expertise?Report

            • Avatar Stillwater says:

              This tidbit might answer some of the questions we all have. Found it here. It’s an April 2017 revision to the 2005 SYG law.

              Currently, Florida law provides immunity from criminal prosecution and civil suit for a person who justifiably uses or threatens to use force to defend himself or herself, other persons, or property. This law is commonly referred to as “Stand Your Ground” (SYG).

              When SYG was adopted in 2005, the law did not specify a procedure by which to raise a claim of immunity. As a result, litigation ensued throughout the state regarding the proper procedure by which to raise the claim. The issue was ultimately resolved in 2015 when the Florida Supreme Court ruled in a five-to-two decision that the appropriate procedure is for the criminal defendant to assert the immunity through a motion to dismiss at a pretrial evidentiary hearing where the defendant bears the burden of proof to establish his or her entitlement to the immunity by a preponderance of the evidence.

              The bill amends the SYG law to shift the burden of proof to the State when SYG immunity is asserted. Under the bill, once a criminal defendant raises a prima facie case of self-defense immunity, the State must overcome the asserted immunity with clear and convincing evidence.

              It also answers Jaybird’s question about civil suits in these types of cases.Report

              • Avatar Oscar Gordon says:

                IANAL, but isn’t clear and convincing a pretty high bar to clear for a pretrial motion?Report

              • Avatar Stillwater says:

                Yeah. It’s a procedural shift that imposes a very high evidential burden pretrial, but imposes a political burden as well. Prosecutors who choose to pursue a conviction and fail will be accused of over-reach (instead of merely failing to demonstrate beyond a reasonable doubt).Report

          • Avatar Oscar Gordon says:

            To echo Maribou, they didn’t say he was justified, only that they felt they couldn’t charge him.

            That, to me, says the locals have no desire to run this case because they will have a hard time with the local jury pool. They want the state to carry this ball, like they did with Zimmerman.Report

      • Avatar Chip Daniels says:

        This is why I consider SYG to be part of a larger pattern of normalizing deadly violence, in this case by greatly expanding the definition of “threat” and expanding the concept of defense to remove the moral injunction to seek the least violent path.

        After being shoved to the ground, there were multiple paths available to Drejka, from simply turning and leaving, to using his fists, to summoning aid, to killing someone.

        The concept at work seems to be that we, society, should be utterly indifferent to which path he chooses, and give him permission to choose any one.

        I shouldn’t think it needs to be argued (but it does) that we set our rules and norms to insist that violence be a last step, not a first one.Report

    • Avatar Oscar Gordon says:

      Reasonable person standard. If Drejka was merely calmly and politely asking the lady to move her car, why did she exit the car, and why did Markesis* feel the need to give the guy a shove away from his girlfriend? He didn’t step out of the store and bull rush the guy, he walked toward him, which means he had time to hear some of what was going on.

      Ergo, Drejka was NOT being polite and calm. He was behaving in such as way as to incite a confrontation.

      *Assuming Markesis does not have a history of violence.Report

      • Avatar Michele Kerr says:

        If he was in any way threatening her, making her feel unsafe, why would she get out of the car? And the boyfriend walked towards Drejka purposefully, without ever once trying to ascertain what was happening.

        Look, there’s no doubt that up until Drejka pulled the trigger, he was the only person who had done nothing illegal. All we’re arguing about is after that fact. No one’s history of violence matters much.Report

        • Avatar Maribou says:

          “Look, there’s no doubt that up until Drejka pulled the trigger, he was the only person who had done nothing illegal.”

          That’s not true, @michele-kerr . I personally have plenty of doubt that he had done nothing illegal, namely, I doubt that he did not threaten to shoot people for parking in the wrong place. You may choose not to take the person who claims to have been threatened at his word, but his word not being proven is not the same as it not raising doubt.Report

        • Avatar Oscar Gordon says:

          I never said she felt unsafe, I said he was not being polite and calm and was trying to incite a confrontation.

          There is a concept of ‘fighting words’, where you could run your mouth right into a fight, and the law would be less than eager to find you in the right.Report

        • Avatar Maribou says:

          @michele-kerr “Why would she get out of the car?” She was putting herself bodily between him and her kids. This is a thing moms do, older siblings do, I’ve done it, most of the moms I know have done it, thus I wouldn’t be surprised if you’ve done it. In my experience it is generally instinctive and not logically thought out.Report

          • Avatar Michele Kerr says:

            Oh, come now. She was in the car. The car was bodily between her and the guy, and if she felt seriously in danger, the best and most obvious way to protect her kids would be to utterly remove them from the situation, which would be easy to do–and also cease the violation that was getting the guy’s attention.

            It’s utterly not credible that she got out of the car to protect her kids but if you want to offer that up, you’ll have to accept that many other people would assume she felt in no danger and just wanted to yell at the nosy asshole trying to be a cop.

            “I personally have plenty of doubt that he had done nothing illegal, namely, I doubt that he did not threaten to shoot people for parking in the wrong place.”

            Perhaps you can accept that case will be assessed purely on the interactions on that day between those three. Or at the very least, assume that others are referring purely to that unless otherwise specified.Report

            • Avatar Maribou says:

              @michele-kerr If you didn’t want an answer, you shouldn’t have asked the question. Rhetorical questions only work if everyone (or almost) agrees with you about the answer.Report

      • Avatar Maribou says:

        @oscar-gordon Markeis McGlockton was arrested, charges dropped, for aggravated battery in 2008. When he was… 18?

        Personally I think that doesn’t count as a history of violence, certainly not without more details, but opinions may differ.Report

  16. Avatar Will H. says:

    I was hoping to see the wording of the statute, but found a wiki article instead.
    Still, it boils down to assault, rather than battery, as the determinative factor.

    As per the wiki explanation, the issue I see is one of standards; e.g., credible threat, reasonable person, etc.
    Also, it elevates the tort of false imprisonment to a capital offense.

    I would like to see this used to clear someone in killing a sheriff’s deputy after being denied admittance to a courthouse; i.e., a facility administered by the state where the right of use is secured under federal law.Report

    • Avatar Oscar Gordon says:

      Statute here.

      Of Note, section 776.041:

      776.041: 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): Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
      (2): Initially provokes the use or threatened use of force against himself or herself, unless:
      (a): 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): 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.
      History.—s. 13, ch. 74-383; s. 1190, ch. 97-102; s. 7, ch. 2014-195.


  17. Avatar Jesse says:

    Here’s the simple truth of the matter – in the rest of the civilized world, everybody involved in this would be alive and the worst that would’ve happened is some angry Facebook posts a few hours later. Now, somebody is dead, somebody will likely be targeted for the rest of their life for a single moment of anger, and so on, and so forth.

    This is the price we pay as a society for having our current gun culture, which is connected to having something in the Constitution that has been read to mean, “everybody who’s not a criminal should be allowed to have a gun anywhere they want basically.”

    If that’s OK with you, because you want to protect yourself from the supposed criminals around every corner, fine, but realize, all the training in the world, all the regulations surrounding guns won’t stop people from using their guns like this, because this is what happens when you make weapons of death easily available to anyone. Period.Report

    • Avatar Maribou says:

      @jesse My heart’s with you – I’d like to believe that about the rest of the world – but my head and my gut disagree.

      What bothers me most about this story is that Drejka had been going around acting irrationally and scarily angry about this for weeks or possibly months or possibly longer, and no one intervened.

      He was a time bomb.

      I feel like our society is full of such time bombs and no one intervenes, until after they go off (and quite possibly not even then).

      I’m not necessarily talking legal intervention.

      I’m talking about involved, caring communities that actually notice dangerous people who feel powerless and have access to people far more vulnerable than they are (ie most dangerous people) and work on doing something about it.

      And the US is far from the only so-called civilized country with that problem.Report

  18. Avatar Oscar Gordon says:

    As a comparison, AZ (my home for the next 10 months or so), has no duty to retreat, but seems to not have the issues FL has.

    See this explainer (with a link to the relevant statutes).Report

    • Avatar Morat20 says:

      The key seems to be “proportional and reasonable force” (from your link) — in short, self-defense does not allow escalation. They use a particularly apt analogy:

      By way of example, if someone were to push you in a parking lot, you couldn’t retrieve a baseball bat from your car and swing at the aggressor. A baseball bat, in that scenario, is a dangerous instrument that can cause serious injury or death. That’s not a proportional or reasonable use of force when standing your ground against a push; however, you could certainly push back since there’s no duty to retreat.

      From the way cases are being handled in Florida, there is apparently no bar to escalation. Nor does anyone seem likely to add one.Report

  19. Its harsh, but if you carry a weapon you have a responsibility to know the difference, and take the responsibility, to use non-lethal first in self defense. You do not have a right to escalate to lethal force just because you have the weapon. This is the problem with the wording of the law and jury decisions coming down to “fear” as a standard.

    There is a story out right now about a deputy sheriff in WV but the quote she gives is the way I was trained on weapons, and fighting for that matter, and articulated it well.

    At one point, Richmond said Jackson “reached for my duty weapon” and credited her training for not using deadly force against him.
    “I’ve been beat to hell and back in training so I knew how to react and fight through being repeatedly being struck in the face and head,” she wrote. “I didn’t freak out … I knew I was okay and still in the fight.”

    You can argue that civilians don’t have that same training, but they also are not required to carry a weapon. It is their right to carry, and with that comes the responsibility of both using and not using the weapon if you carry it.

    I strongly 2A, and support the right to carry. I just as strongly demand accountability of those that do. I know its hard. I’ve been in situations were you have to make that decision while armed and under duress. But if you carry, that’s a decision. The totality of circumstances leading up to use of force is a series of decisions. The actions taken are decisions. By the letter of this law, by SYG, I can see them, disagreeably, as not being guilty. Not the same as being innocent. No one had to die here. They decided to do so.Report