Attorney: Shooter's pause could leave door open for charges

CLEARWATER (FOX 13) - Another case is putting Florida’s Stand Your Ground law to the test. It began with a fight over a parking spot at a convenience store in Clearwater.

It ended with a man shot to death in front of his young son.

The Pinellas County Sheriff Bob Gualtieri explained the shooter’s actions were within the boundaries of Stand Your Ground and therefore he would not be charged.

Surveillance video of the shooting and the word of the shooter are why Sheriff Gualtieri decided he would not be making an arrest in this case.

“The law in the state of Florida today is that people have a right to stand their ground and have a right to defend themselves,” Gualtieri said.

The security footage shows Michael Drejka confronting a driver who parked in a handicapped spot outside the Circle A Food Store. Moments later, the driver's boyfriend, Markeis McGlockton walks out of the store, right up to Drejka, and shoves him to the ground.

Drejka pulls out a gun, shoots, and kills McGlockton. The entire confrontation lasts just six seconds.

The sheriff says Drejka claims he feared for his life. The sheriff says the Stand Your Ground law handcuffs his ability to make an arrest in a case like this.

“He felt that he was in peril and that he needed to shoot to defend himself,” Gualtieri said. “It is a largely subjective standard. This is not an objective, “What I would do, what you would do, what the public would do, what somebody else would do.’ This is more of a subjective standard.”

WATCH: Girlfriend of man shot in Stand Your Ground incident: 'This is not over'

The sheriff's comments surprised Tampa attorney Anthony Rickman. He says prosecutors could still charge the shooter but Gualtieri's comments might make that difficult.

“They look at the case at a much higher standard of proof. They [ask], ‘Can we prove this case beyond a reasonable doubt?’ and if you have the sheriff standing up in front of a podium saying, ‘We don't have probable cause to even believe he should be arrested,’ it's going to be hard for the State Attorney's Office to turn around and say, ‘Well, we think he should be prosecuted,’” Rickman explained.

You may recall the Stand Your Ground law was changed last year. Sheriff Gualtieri explained how the changes keep his officers from making an arrest in this case.

“The immunity under the stand your ground law is not just an immunity from being charged, not just an immunity from being convicted, but is an immunity from arrest… The law used to be that the defendant had to raise stand your ground as a defense and the defendant had the burden of proving that they were entitled to immunity under Stand Your Ground. The legislature changed the law. The law now is that the state attorney has the burden of proof, by clear and convincing evidence, that the shooter is not entitled to stand your ground. Nowhere else is there anything like this in criminal law, where somebody asserts something and the burden then shifts to the other person.”

However, attorney Rickman said the sheriff might have left the door open for prosecutors to charge Drejka.

“Before Stand Your Ground, a case like this probably would have a different outcome. As you can see in there, there is a pause, even if it’s only for a couple seconds, there is a pause between the time Drejka hits the ground and he shoots. That pause gives me pause. That pause gives me some concern… but I don’t get to, and we don’t get to substitute our judgment for Drejka’s judgment,” Sheriff Gualtieri explained.

Rickman says that pause could be the basis for the State Attorney's Office to ask if the time lapse was long enough for Drejka to consider whether or not to kill McGlockton - as opposed to just reacting in fear?

Britany Jacobs believes the answer is “Yes.”

“This is not right and I need justice. I need justice,” Jacobs said.

News