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Florida Theater Shooting Induces Another Round of “Stand Your Ground” Mania

Florida Theater Shooting Induces Another Round of “Stand Your Ground” Mania

“Stand-Your-Ground” has no application to this case — but it makes great headlines.

Ever since the phrase “Stand-Your-Ground” caught the eye of journalists everywhere, it seems they simply cannot get enough of it.

“Stand-Your-Ground” here, “Stand-Your-Ground” there, “Stand-Your-Ground” everywhere.

The latest breakout of “Stand-Your-Ground-Mania” is now emerging around a tragic and apparently completely unnecessary shooting in a Tampa-area theater yesterday, as described in a piece from the Tampa Bay Times:  Stand Your Ground already an issue in theater shooting.

I covered this a bit from a legal-tactical perspective over at my blog — Legally-Sound Self-Defense Strategy Rule #1: KEEP OUT OF TROUBLE IN 1st PLACE — so in the interests of saving time, I’ll just copy over the factual description from that post:

Sadly, yesterday the Christian Science Monitor reports on a story where what started as the most minor of conflicts ended up with 71-year-old Curtis Reeves, a former police officer in the area who had retired 20 years ago as a Captain, shooting and killing 43-year-old Chad Oulson, a fellow movie goer. (Movie theater shooting: Did a retired cop shoot a fellow moviegoer for texting?)

Both men, each accompanied by his wife, were attending the movie theater to view the just-released movie “Lone Survivor.” Naturally, before the movie itself began the audience was “treated” to s series of trailers for other upcoming movies. While these trailers were being run, Oulson was texting on his phone. Reeves, sitting behind Oulson and presumably disturbed by this activity, told Oulson to stop texting. Oulson replied that he was checking on the status of his 3-year-old daughter.

Reeves then became sufficiently upset that he sought out the manager of the movie theater. Either he had no luck or the manager disinclined to enforce the “no texting” rule while only previews were running, because he returned alone, apparently even angrier than when he left. No sooner had he taken his seat than the argument between the two men began again.

Oulson stood up and turned to face Reeves. Their voices got louder, and at some point popcorn was being thrown.

Witnesses then say Reeves drew his sidearm. Oulson’s wife placed her hand on her husband’s chest, and Reeves fired. The bullet penetrated her hand and Oulson’s chest. Blood began to come from Oulson’s mouth, suggesting the wound was effectively mortal. Taken to a Tampa-area hospital, Oulson died.

Reeves was quickly stripped of his gun by a person beside him, and was promptly detained by an off-duty deputy until police arrived. Reeves has been charged with second degree murder. (Early reports make no mention of Oulson possessing a weapon of any sort, but of course these are “news” stories, and as such their grasp of “facts” is always suspect.)

That Tampa Bay Times piece does have some additional — and contradictory — information that wasn’t included in the earlier Christian Science Monitor piece I relied on for my post at my own blog.  It is now reported that Reeves told responding officers on Monday that Oulson struck him in the face with an unknown object.

Witnesses, however, reportedly told police that the two men did not throw punches.  Rather, they witnesses that Oulson threw a bag of popcorn at Reeves, and in response Reeves drew his sidearm and shot Oulson fatally (in the process, the bullet passed through the hand of Oulson’s wife, which she had placed on her husband’s chest.  The 43-year-old Oulson is survived by his wounded wife and a three-year-old baby.)

As the headline of the Tampa Bay Times pieces indicates, the incessant screeching about the role of “Stand-Your-Ground” in this shooting has already begun.  So, let’s try to bring some clarity to the situation.

First of all, “Stand-Your-Ground” is not some new or parallel form of legal defense.  It is best thought of as a “feature” you can take advantage of if you are actually engaged in legitimate self-defense to begin with.  If you are NOT engaged in legitimate self-defense, “Stand-Your-Ground has NO application.  Zero, zilch, nada.

Second, even if you WERE engaged in legitimate self-defense, “Stand-Your-Ground” merely relieves of you of any existing duty to take advantage of a safe avenue of retreat before resorting to the use of deadly force (in some states, ANY force) in self-defense.

But such a duty NEVER exists unless a safe avenue of retreat actually exists in the first place. If there is no safe avenue of retreat, there is no duty to  retreat, and “Stand-Your-Ground” again has NO application.  Zero, zilch, nada.

In this scenario the user of “defensive” deadly force was 71-year-old Reeves, a career police officer who retired as a Captain after helping found the department’s SWAT team and serving as the Tampa Bay police department’s firearms coordinator–in other words, someone who would be expected to have a very robust understanding of the continuum of lawful physical force and its appropriate deployment.

Yet there appears scant evidence that Reeves was ever faced with a deadly-force threat that would warrant him drawing and firing his weapon. Certainly, getting struck by popcorn would not qualify, and so far the record shows no other physical contact between the two men.  Granted, if blows had occurred (or reasonably threatened) the older Reeves might have had good reason to fear a beating at the hands of the much younger Oulson–but there’s no evidence that any such blows occurred (or were even threatened).

So from the very start we have an extraordinarily weak self-defense claim to begin with.  And, recall, if Reeves was not acting in lawful self-defense, then “Stand-Your-Ground” has no application.

But let us suspend a career’s worth of cynicism and stipulate, for the purposes of this discussion, that Oulson committed SOME act that would have put a reasonable and prudent Reeves, under those circumstances, in  fear of imminent death or grave bodily harm, such that Reeves was, in fact, acting in lawful self-defense.

Anyone who has ever, even once in their life, had to excuse themselves from a theater seat knows how awkward and painstaking the process is.  “Excuse me, pardon me” . . . step on a toe here, an instep there . . . “so sorry, excuse me.”  It’s difficult to imagine of a position common to normal life in which retreat from an imminent threat could possibly be  more difficult then from a seat in a populated theater.  Even were Reeves in the aisle seat, his wife would then not be, and he would never be required to flee a deadly threat and leave her behind.

Even if Reeves use of deadly force was appropriate given the threat, there was never any safe avenue of retreat open to him.

That being the case, there would never have been a duty to retreat, whether  or not “Stand-Your-Ground” had ever been adopted.

So, again, “Stand-Your-Ground” has no application to this case.

Of course, I’ve been wrong before (just ask my first wife), but based on the “facts” as presented (so far), this would seem to be a textbook case of where “Stand-Your-Ground” had no potential role whatever.

–Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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Comments

The lamestream media outlets can only parrot what they are told by their masters. In this case, the masters wish for ‘stand your ground’ to be embedded into the psyche of every reader, and for it to evoke angry feelings about the Travon Martin case. This continues the polarization of the readers and gets many of them to read the article and nod their head in a glassy-eyed shallow way.

“Remember Trayvon…” they will mutter under their breath.

That’s what the current drum-beat on “stand your ground” is about.

It keeps the ‘useful idiots’ riled up, and ready to be exploited at a moment’s notice.

It sounds like Reeves should’ve found himself another seat.

The movie hadn’t begun and Oulson was only texting during the previews. Did his phone make an annoying sound when texts came in? Why was Reeves, sitting behind Oulson, annoyed by the latter’s texting? Was it the light from the phone or something else? Why couldn’t Reeves live and let live? Did Reeves, a retired police officer, think he still had the authority to tell someone to stop doing something and expect immediate compliance?

The whole things appears to have been instigated by Reeves, and a thrown bag of popcorn does not require defending against. Yet Reeves pulled a gun on and shot an unarmed man who was being restrained by his wife. Reeves as acting, I think, according to type, according to who he had been before retirement.

I wonder what his record shows.

    “Did Reeves, a retired police officer, think he still had the authority to tell someone to stop doing something and expect immediate compliance?” I think that sums it up quite correctly. IMO Reeve’s ego and sense of self importance got the better of him.

      janitor in reply to MarkS. | January 14, 2014 at 10:41 pm

      Maybe Reeves is semi-senile. The entire thing is inexplicable.

      (By the way, lots of movie theaters in Florida these days have assigned seating.)

A tragedy. Before the gun control advocates get going it is worth noting that Reeves most likely had authority to carry a concealed weapon under Federal Law: 18 USC § 926C – Carrying of concealed firearms by qualified retired law enforcement officers

Henry Hawkins | January 14, 2014 at 7:37 pm

Why did texting bother the shooter? It’s a pretty quiet practice, not likely to bother anyone.

Talking on your cell during a movie, that’s a shootable offense.

    I agree. I can’t understand why a stranger’s texting would bother anyone. Especially considering all the noise and seat bustling that goes on during the previews.

    Maybe he also was yakking. Or his wife was yakking and telling him what to ask the babysitter. And the light from the phone and other activities.

      Juba Doobai! in reply to janitor. | January 15, 2014 at 12:06 am

      I think your first guess may be right. Semi-senile. If Reeves is in a state of early onset of dementia, he could be totally irrational and made angry by anything, including the blowing of the wind.

    Testing has multiple elements.

    The light can cause problems with the glare, especially those with glasses, like senior citizens.

    The sound can cause more problems than the average young person may think of. Older citizens often have problems hearing. Extra noises can make a marginal situation intolerable.

    I must also mention that while the late Mr. Oulson may have thought it “cute” to throw a bag of popcorn at Mr. Reeves, you never know where situations like that can go. In this case, it went horrible wrong.

      Henry Hawkins in reply to Neo. | January 15, 2014 at 10:14 am

      The shooter sat behind the texter. Was the texter holding his phone over his head? Most likjely he held it in his lap, with a seat back and what looks like a tall man’s body between the phone and the shooter’s eyes.

      The shooter is a retired LEO of rank perhaps used to being obeyed (I once worked for a retired USAF colonel who never learned you can’t bark at civilian employees like they’re enlisted men and you’re still a colonel) complicated by the curmedgeonly intolerance that sometimes comes with senility.

      It may also have been some ‘last straw’ scenario, where something totally unrelated to the events in the theater had the shooter right on the edge of sanity, and the minor texting argument pushed him over the edge.

Andrew – in some jurisdictions, retired LEO’s get automatic ‘CCW for life’ rights. Is Florida one of them ? IOW, this might not even be a ‘Joe Public CCW’ issue , let alone SYG ?

But Reeves had already retreated once, and then returned. Does this influence an SYG determination?

Going to get a manager because you’re “annoyed” at someone is not a “retreat” in a self-defense law sense, because there was not yet any physical conflict, nor even hint of physical conflict, nor even threatening conflict.

Had there been, having secured a place of safety from even threatened physical conflict only to “return to the fight” is never going to be very conducive to a later claim of self-defense. (e.g., Marissa Alexander). And if no lawful SD, no SYG.

–Andrew, @LawSelfDefense

Well, my expertise is self-defense law, not gun law. Gun laws are too crazy across states, even within states, for me to maintain any credible expertise–so I don’t try to.

Having said that, I believe in most jurisdictions that allow that sort of thing it is NOT a “CCW for life,” but rather as long as they continue to qualify, as if on duty, they maintain their LEO credentials for purpose of CCW.

Frankly, it sounds more burdensome than simply getting a CCW, at least if one lives outside of the slave states (NY, NJ, MD, IL, CA), as Reeves did living in FL.

–Andrew, @LawSelfDefense

Oulson was a self absorbed jackass but last time I checked, that wasn’t grounds for shooting someone.

    Jazzizhep in reply to Sanddog. | January 14, 2014 at 8:52 pm

    you haven’t met my ex

    MarkS in reply to Sanddog. | January 14, 2014 at 9:38 pm

    Agreed, it wasn’t like he was getting in the express checkout with more than the allotted number of items.

      I see what you did there. 🙂

      –Andrew, @LawSelfDefense

      MouseTheLuckyDog in reply to MarkS. | January 14, 2014 at 11:22 pm

      No. Shooting is excessive. I would simply turn off the lights near the guy, shine a spotlight on him, and a recorded message piped over the music system, “Ladies and gentlemen, here jis a person who cannot count to ten” or whatever number.

        I’ve got a little Surefire 100+ lumen light in my left pocket that would work awesome against a popcorn thrower in a theater–certainly, long enough for me to vacate the premises, along with my wife and kids.

        If he somehow got past that, I have pepper spray–would rather not, but may not be my call.

        If he gets past that, he’s evidencing a degree of determined violence that would likely warrant an escalation on my part up the continuum of force. Depends on the circumstances.

        In all probability, though, we’re already in the car on the way home. At least, that’s the goal.

        I can’t, however, imagine shooting someone for throwing popcorn at me. I MIGHT stumble while trying to escape and accidentally knock them down. It’s easy to trip in a movie theater. But shoot them? Nah.

        –Andrew, @LawSelfDefense

          MouseTheLuckyDog in reply to Andrew Branca. | January 16, 2014 at 1:45 am

          It’s taken me a while to respond to this post. Mainly because of the first part. Let me respond point by point.

          1) Seriously? I would hope that senior members of the blog would not
          resort to ad hominum attacks, it sets a bad example for the
          other contributors.

          As for the imprudent hyper-aggresiveness, that may be the way it
          is viewed in liberal ( in my best Anthony Heald impersonation )
          Massachooooosetts, but in the Midwest punching out someone who
          is sneaking up on you is considered very prudent.Doubly so for
          women ( though I am a man ). It is generally assumed that a
          person sneaking up to you is up to no good.

          As for relevance, Twanger covered that in his reply.

          2) I’m sorry that unlike the Trayvonites, I often couch my
          statements in adjectives of uncertainty. I would like to make
          statements like: George was ordered to stay in the car; or George
          described Trayvon as black. I prefer to not claim things as fact
          if I am not absolutely certain in them, but if you want here
          goes.

          We know it was dark. They were showing previews which are done
          in most theatres with the main lights off. Reeves was looking up
          at Oulson. Since he was looking up, Which means that he would
          not see the box until it had traveled some distance.

          If you ask any sporting figure, an object traveling at your face
          is the hardest to identify, it’s location is the hardest to
          pick up and so is it’s momentum. In baseball it’s one of the
          things that make a beanball scary. Furthermore, since Reeves was
          looking up at Oulson, much if not all of the box would have been in his
          peripheral vision.

          I’ve already mentioned that throwing an object, even an innocent
          one, is often used as a diversionary tactic in street fights.
          Researching Florida statues I discovered a rather interesting
          forum ( one on Smith-Wessons ) which had a discussion of
          this of one particular tactic, throwing with one hand while
          stabbing with the other. I also discovered another interesting
          fact. Many, not all, but many cops are taught that someone
          throws something in your face, expect a more lethal attack to
          follow from the other hand. For those not actually taught that,
          I think a little experience would fill the gap.

          So let us sum up. A large burly man, much younger,
          stronger,faster man starts a fight [see below] in a theatre, then
          throws an object in a dark theatre that is hard to identify
          while being restrained by his wife. Furthermore
          is a tactic used to disguise a further attack. Now I don’t know
          what “legal” minds would say about this, but I do know that
          Dennis Root would testify that Reeves had a reasonable
          expectation of encountering potentially lethal force.

          That I believe is good enough basis for a good lawyer to form
          a compelling narrative.

          3) Well as some have poointed out, it is not “simple” assualt.
          Technically I believe Florida calls it “felony assault on the
          elderly”. AS to whether it would apply, on the SW forum
          mentioned earlier, a case was cited where a man was charged
          with striking a man with a shopping cart. As for the rest
          that has already been covered in 2.

          4) Cut the crap. Why Oulson threw the popcorn directly goes to
          his character. A character which it seems is becoming
          “Trayvonized”. You know the 12 year boy who liked to wear
          hoodies and went out for a snack. Even you are doing it:
          “Bottom line, however, is a 43-year-old father is dead,
          his wife widowed, and a 3-year-old left fatherless–over what?”

          5) Actually we do know a bit more. As ABC reported, Oulson started
          the fight when Reeves returned by taking umbrage with Reeves
          seeking out the manager. One has to wonder if Oulson wasn’t used
          to people defering to him because of his size?

          As for Reeves, prosecution lawyers have already brought up a
          person who claims to have had a disagreement with Reeves in a
          theatre over texting. I actually was surprised they did, though
          I suppose that if they didn’t eventually the defense would. She
          accused Reeves of the dreaded crime of glaring at her throughout
          the movie. AS far as I could tell she didn’t have any bullet holes
          in her, but then she didn’t start an argument over his complaining
          to the manager and then throw something at him.

          Oofah.

          –Andrew, @LawSelfDefense

    Juba Doobai! in reply to Sanddog. | January 15, 2014 at 12:14 am

    Why does checking on his 3-year old make Oulson a “self-absorbed jackass”? He sounds like a concerned parent.

      He’s on private property, ignoring the rules the owners set forth as a condition of using said property. Dad could have taken his “concerned” butt out to the lobby where you are free to use your phone.

      That makes him a jackass. If you want any respect for your own rights, you damned well better respect the rights of others… and that includes the right to set the terms of behavior in your business.

        rantbot in reply to Sanddog. | January 15, 2014 at 12:37 am

        Which must be why the theater manager intervened promptly to castigate Oulson for his transgressions.

        Except that … he didn’t.

          You know that Reeves ever actually had contact with a manager?

          I’ve seen no evidence of that.

          If you have it, share. If not . . . what are you talking about?

          –Andrew, @LawSelfDefense

          Sanddog in reply to rantbot. | January 15, 2014 at 1:06 am

          It is not even remotely uncommon for employees and yes managers, to avoid conflict by ignoring problems. Many people just aren’t comfortable confronting someone who is exhibiting bad behavior. It’s a big problem in the service industry where they don’t want to offend anyone with a dollar in their pocket.

          So, Sanddog, you’re saying, then, that you DON’T actually know, correct?

          –Andrew, @LawSelfDefense

          rantbot in reply to rantbot. | January 15, 2014 at 1:35 am

          I didn’t say he had contact with the manager. The manager – if he’s “managing” – can probably handle a few things himself without some uppity customer’s help.

          Or is just anyone on premises supposed to decide what’s proper behavior in this establishment located on “private property”, and enforcing the “rules the owners set forth”, even if he doesn’t happen to know what they are? The defendant is a retired LEO, not a retired theater bouncer.

        Well, being a “jackass” hasn’t been a shooting offense in quite a long time. In most places, it’s not even a misdemeanor.

        –Andrew, @LawSelfDefense

Some people use really annoying ringtones, and it gets really unbearable when they text, text, text back and forth.
Still, that’s not a “shootable” offense; not during the previews at least.

By the way, I always set up my phone so that it vibrates with incoming text messages.

MouseTheLuckyDog | January 14, 2014 at 9:37 pm

I was curious. There was a case a few days ago in Florida, reported by the Orlando Sentinel, A guy named John Wayne Rogers, white and legally blind, shot a black friend. It was morning after beer run when Rogers asked him to leave and he wouldn’t. THe udge granted him immunity at the end of testimony.

I was curious, why immunity and not a JMoA?

http://www.orlandosentinel.com/news/local/trayvon-martin/os-stand-your-ground-blind-shooting-20140110,0,317080.story

    Bruce Hayden in reply to MouseTheLuckyDog. | January 15, 2014 at 11:08 am

    Sanford seems a booming place for self-defense.

    I would think that the defendants waited until the prosecution had finished their case, and maybe they had done so themselves, before asking for the immunity ruling. Interesting trial technique. Would not be surprised if they had followed that up with your JMOA or directed verdict of the type used in FL. And, not trying criminal cases, not sure which would have the higher standard of proof on the part of the defendant. My understanding is that the immunity requires a preponderance of the evidence, while the directed verdict/JMOA? That no rational jury could find beyond a reasonable doubt? But, putting burdens of proof aside, immunity has some advantages, including that the defendant cannot later be sued for wrongful death in civil court.

    Now that the defense bar in Florida has seen this strategy work, maybe there will be more of it. I am thinking that in a non-politicized judge, that the Zimmerman defense probably had a stronger case for self-defense than apparently did John Wayne Rogers, where there were apparently alternate plausible stories. There really weren’t in the Zimmerman case.

    Should be interesting in the future to see if immunity hearings at the end of the prosecution’s case, or at the end of the evidence, become common in Florida self-defense cases, or if this was a one-of-a-kind type thing.

      In Florida, self-defense immunity can be sought at any time–indeed, if sought pre-trial,and failed, can be sought again at trial.

      As you note, the burden of proof for self-defense immunity is considerably less than that for a motion of acquittal (that it is more likely than not that the defendant acted in lawful self-defense, versus no reasonable finder of fact could conclude that the defendant acted other than in lawful self-defense).

      As you also note, in Florida self-defense immunity comes with benefits not attacked to a MOA, including civil immunity, and ability to recoup legal costs, etc., if successful in defending a civil case on basis of self-defense.

      –Andrew, @LawSelfDefense

MouseTheLuckyDog | January 14, 2014 at 10:03 pm

I am going to jump to Reeves defense.

Twice I have nearly punched out for friends. Why? They tapped my shoulder from behind and I was startled, I was only fractions of a second from actually releasing the punch when I recognized them. I’m a bit ashamed because I was taught a form of martial arts which preached you should not be startled.

In a heated discussion, Reeves saw an item coming for his face. Given it’s his face, he probably had no idea of what it was or his fast it was coming. He may never even seen it from anything other then his peripheral vision. For all he knew the object could have been a flashlight, or some kind of weapon, or anything hard.

In this case Oulsen decided to throw something in anger at the guys face. That is an act of assault. Never mind that it was just a bag of popcorn, a kernal could have poked his eye out ( see Ma I was listening ), gone up his nose and choked him, or hot butter could have scorched his face. I think Reeves was perfectly justified.

What no one seems to bring up is why Oulsen felt it was OK to throw something in a strangers face, even if it is only a bag of popcorn.
As this gets near trial are we going to see some anger management issues on Coulsen’s behalf?

    MouseTheLuckyDog in reply to MouseTheLuckyDog. | January 14, 2014 at 10:24 pm

    Thinking about it. His wife was holding him back.

    It is a common street fighting tactic to throw something just before you move in to attack.

    (1) Your hyper-aggressiveness in almost punching out friends in response to a mere tap on the shoulder isn’t relevant–the law of self-defense does not condone extreme and irrational behavior, but only the behavior of the reasonable and prudent person.

    (2) Phrases like “he probably had no idea” and “he may never even seen” and “for all he knew” do not support a compelling narrative of necessary self-defense. The connotate speculation. Speculation and unreasoned fear is NOT reasonable and prudent self-defense.

    (3) Throwing popcorn in someone’s face is, indeed, assault. Simple assault. Which does not warrant a deadly force response.

    (4) Why Oulsen felt it was OK to throw popcorn at Reeves is not relevant to a deadly shooting, because the conduct cannot justify a deadly force response; see item (3).

    (5) Might we see “anger management” issues on Coulsen’s part? Perhaps. On Reeves part? The guy who actually shot someone for throwing popcorn in his face? Oh, I’m betting, yep.

    –Andrew, @LawSelfDefense

      Rick the Curmudgeon in reply to Andrew Branca. | January 15, 2014 at 12:43 am

      “…71-year-old Reeves, a career police officer who retired as a Captain after helping found the department’s SWAT team and serving as the Tampa Bay police department’s firearms coordinator…”

      In other words, an “trained professional” who should be held to a higher standard than the average citizen or CCW.

        Except that an ex-SWAT instructor and leader seems more to have been heavily involved in the para-military side of policing, where fast reaction with often deadly force is maybe more important than dealing with the innocent public. Dog barks? Shoot it. Shoot it even if it doesn’t bark because it might. Someone pulls an object out of their pocket? Shoot them first, because it might be a weapon. Someone throws something at their face? Shoot them, because that is probably a feint to allow them to draw a weapon.

        Just a theory, but it may be that the defendant here is just too well trained as a SWAT officer to live in society, and his better defense might be insanity.

        And, yes, I do wonder if institutionalized SWAT teams and the militarization of this part of policing is really a good thing, or, rather, a pretty blatant attack on our civil liberties.

          Twanger in reply to Bruce Hayden. | January 15, 2014 at 5:58 pm

          Yes, repetitive combat training can cause some issues in the ‘real world.’

          I was a competitive fencer and many years ago my 14 year old stepdaughter (at the time) and I were just goofing around sparing with our hands like we were fencing. She attacked and I did a reflexive parry/ripost and knocked the wind completely out of her. She crumpled to the ground, and I felt horrible!

          She’s now a cop and carries, of course.

          Her training if she has a weapon malfunction is to “tap/tilt/rack” as fast as she can to get her weapon functional and back on target. She does this instinctively.

          My training at the range is that if I have a weapon malfunction I slowly and methodically control the muzzle and the weapon and keep it pointed down range for a good minute. Then I VERY carefully disassemble the weapon, and if it was a FTF situation the round goes right into a solid steel range-box.

          So the point of this story is that her ‘combat’ training dictates that she must get her gun back in the fight as quickly as possible, and the slight chances of a round cooking off in a delayed manner vs. getting shot by a bad guy dictates her actions.

          We don’t have many bad guys at the range, and so I’m most concerned with not having a round cooking off and shooting myself of someone near me, and that dictates my actions at the range – a more ‘real world’ situation.

          So my stepdaughter and I react in almost exactly opposite ways to a ‘misfire’, but in direct response to our training.

          Sounds to me like the shooter has mental problems and no longer can function properly in the real world.

          Twanger writes: “Sounds to me like the shooter has mental problems and no longer can function properly in the real world.”

          That’s my expectation as well. Early onset AD, maybe? In Florida, may carry some juice.

          Bottom line, however, is a 43-year-old father is dead, his wife widowed, and a 3-year-old left fatherless–over what?

          It’s still the early days, and perhaps some witness will arise to describe some conduct of Oulson’s as reasonably representing an imminent threat of death or grave bodily harm, such as to justify Reeves use of deadly defensive force.

          No such conduct is evident yet, however.

          And no speculative threat–coulda, woulda, mighta–is going to support this shooting.

          –Andrew, @LawSelfDefense

      Andrew: “3) Throwing popcorn in someone’s face is, indeed, assault. Simple assault. Which does not warrant a deadly force response.”

      End of story. Retired cop or not, he unlawfully escalated a confrontation with the use of deadly force. The burden of proof (in my state) that his use of force was reasonable is on the defendant.

        The burden of persuasion on self-defense in every state including Florida, but EXCEPT for Ohio, is on the State. The defendant, once he has met his (usually very low) burden of production and gotten self-defense admitted into court in the first place need not prove anything. The State must DISPROVE self-defense beyond a reasonable doubt (again, except for Ohio).

        Often, however, that’s not all that hard to do. The State must simply disprove any one of the five elements of self-defense, and it collapses (some modification here for jurisdictions that recognize “imperfect self-defense”).

        Of course, if the State presents considerable evidence undermining one or more elements of self-defense, and there is no counter evidence–well, the defendant is entitled to say nothing, prove nothing, but the jury is entitled to accept the State’s narrative of guilt and find the defendant guilty.

        –Andrew, @LawSelfDefense

        Bruce Hayden in reply to Redneck Law. | January 15, 2014 at 11:24 am

        Andrew, the expert here in self-defense law, points out that the burden is on the state to disprove self-defense beyond a reasonable doubt. Nevertheless, I do agree that even if the popcorn is considered an assault, that does not give the defendant the right to escalate to the use of deadly force. Maybe, just maybe, he could have legally thrown a punch. But, absent more, shouldn’t have been able to escalate to the use of deadly force. The standard is (paraphrasing from memory) that he must have had a reasonable fear of death or great bodily injury to himself or someone else. I don’t think that a fear of being hit by popcorn will turn out to be reasonable fear of death or great bodily injury. Having your head bashed into the concrete, or being strangled (both in Zimmerman’s case)? Yes. Popcorn? No.

          MouseTheLuckyDog in reply to Bruce Hayden. | January 15, 2014 at 11:50 am

          And I am sure that his lawyer will point out that he was unsure of whether it was a box of popcorn, or a piece of concrete. He is also unsure if there will be a fist at the end of the object.

          In the end if there was a delay in the time between the box being thrown and Reeves firing then he really has no defense. If on the other hand Reeves reacted immediately, then he may very well have a case.

          “Voices were raised. Oulson threw a bag of popcorn at Reeves, police said. Then, the former police officer took out a .380 semi-automatic handgun and shot Oulson, police said.”

          Except it sounds like Reeves drew his gun after the popcorn was thrown. So he would have known that he’d been hit with something harmless. And why shoot? He could have held him at gunpoint and told him to get out of the theater or sit down and shut up, or any number of less tragic alternatives than shooting the man.

          @gmx17

          It seems reasonable that Reeves expected the next thing to come his way would be the cell phone itself.

          I’m surprised no one has raised this.

    Anyone taps you on the shoulder, you start swinging ??? Damn ….

      MouseTheLuckyDog in reply to pjm. | January 15, 2014 at 1:58 am

      Well it’s only been two times out of 50+ years. Of course, anytime there is no one near me , someone sneaks up behind me and grabs my shoulder I am at least ready to swing. I once met someone who didn’t. He got stabbed as a result.

    Juba Doobai! in reply to MouseTheLuckyDog. | January 15, 2014 at 12:23 am

    1. A container of popcorn is hard to miss.

    2. The wife had a hand on Oulson’s chest.
    That means he had only one hand free, the popcorn throwing hand. Was the hand placed there before or after throwing the popcorn? Whatever, to attack Reeves, Oulson would’ve had to push away his wife. That hand on his chest says no further action would’ve been tolerated by her. Reeves, former policemen, would’ve read and understood the body language of both Oulsons, and he would have known also, if he’s compos mentis, that he did not need to draw his gun.

    You’re a bit tightly wound, man, or been in one bar fight too many?

      I have yet to see a report which says that Oulson threw anything. “Popcorn was thrown” is not the same as “Oulston threw popcorn”.

        MouseTheLuckyDog in reply to rantbot. | January 15, 2014 at 2:49 am

        Reeve’s lawyer said Coulsen threw something during his arraignment hearing. The prosecution did not dispute it.

I live in Florida. When my wife and I took our CWP class in Sanford, it was just prior to the Zimmerman case. A lot was emphasized about being a responsible gun owner and taking our rights seriously as well as being careful and responsible.

What concerns me and it should ALL of us is Capt. Reeves, a retired police officer with years of experience and training shoots and kills someone because he was aggravated over texting? Is this an aberration or is this more problematic of those who have had training in Law Enforcement?

    It’s an aberration. Many millions of CCW holders all over the country, this almost never happens. Especially relative to the 2 million-plus times a year CCWs save themselves or another innocent from criminal predation every year.

    We cook with fire. We light with electricity. Sometimes one or the other burns one of our homes down. When it happens, we don’t condemn the appropriate use of fire or electricity.

    –Andrew, @LawSelfDefense

    rantbot in reply to natdj. | January 14, 2014 at 11:05 pm

    “because he was aggravated over texting?”

    At this point you’re probably putting too much weight on the details of the reporter’s version of reality. The deceased may have merely texting in the same way that Travon M was merely walking home with Skittles.

      Perhaps. Except Zimmerman had actual injuries. Where are the injuries, or witness testimony of even threats of injuries, to Reeves?

      Absent that, how is the use of deadly force in “self-defense” justifiable?

      Of course, the burden is on the State, not Reeves. But we know how that works. It’s going to take some countervailing evidence to overcome a dead guy shot (apparently) through the heart, through his wife’s hand.

      It doesn’t look good to the retired Captain from my position.

      But who knows, new evidence may emerge.

      –Andrew, @LawSelfDefense

        I was just mentioning a recent known example of blatant misreporting, and suggesting that careless journalism may be happening again in this case. A poor example, perhaps, if it suggests that I’m hinting that anything like Martin’s witnessed actions likely have any parallel here. I agree entirely with you; the captain’s case doesn’t look promising.

        Exactly. I keep pointing this out to people who don’t understand the difference between the two cases. We’ve seen a photo of Reeves at the bond hearing and it is very obvious that the popcorn did not leave a mark. Conversely, the photo evidence clearly showed that GZ had taken a beating.

          MouseTheLuckyDog in reply to gxm17. | January 15, 2014 at 4:38 pm

          Marks don’t matter. What matters is whether a reasonable personwould have believed he was in danger of “death…”, The only way marks matter is when they reinforce or cast doubt upon an argument of the level of threat perceived.

          gxm17 in reply to gxm17. | January 15, 2014 at 4:43 pm

          Exactly; and I will be quite interested to see the defense’s case as they try to convince a jury that a bag of popcorn posed (or appeared to pose) a mortal threat. Sounds like a job for Jose Baez.

        ScottTheEngineer in reply to Andrew Branca. | January 18, 2014 at 1:49 pm

        Andrew, how many times does a person need to be struck before self defense becomes legal? Do I need to be struck before shooting or, if I reasonably believe a physical threat is imminent can I shoot?
        I think that point is missing in your scenario.
        I hope you cover this upcoming trial. I really enjoy reading your take on things.
        Thank you.

          You needn’t be struck even once.

          But if you are to use deadly force in self-defense, you must reasonably perceive that an attack capable of causing death or grave bodily harm is imminently about to be brought against you. Indeed, the perceived threat need not even be real (think, a toy gun or a shiny object perceived as a knife), but the perception of the threat must be a reasonable one.

          In this case, based on the facts as currently known, it’s difficult to identify the conduct by Oulson that represents a reasonably perceived imminent attack capable of causing death or grave bodily harm.

          Clearly, thrown popcorn is not enough. In almost all circumstances even a raised fist is not enough, barring some extraordinary aggravating factors, and here we do not appear to even have that level of threat.

          Certainly, if credible evidence emerges of a reasonably perceived threat of death or grave bodily harm, Reeves prospects for a successful claim of self-defense improves. So far all I’ve heard, however, is utter speculation, and a speculative fear of death or grave bodily harm is not sufficient to justify killing someone.

          –Andrew, @LawSelfDefense

    Bruce Hayden in reply to natdj. | January 15, 2014 at 11:30 am

    As I point out below, I think that what makes it even worse is that much of his later career seems to have been spent in training and commanding SWAT officers, where quick acting use of deadly force is seemingly promoted.

    I do worry though that his retention of a CCW permit through as a former police officer allowed him to skip the class that civilians have to take to get their CCW permit. Moreover, I think that this is evidence that officers retiring may need to go through retraining as civilians. What works for a SWAT officer in a SWAT raid doesn’t work for a civilian in a movie theater when popcorn is thrown at his face.

“Anyone who has ever, even once in their life, had to excuse themselves from a theater seat knows how awkward and painstaking the process is.”

I disagree with you here. Its only awkward because you are trying to be polite. If I’m actually in fear for my life, I’m barging through everyone, jumping rows if needed.

Thank you for writing in a clear manner about what happened at this incident.

    That’s such a succinct sentence it makes me wonder if you’re an internet bot. 🙂

    But, sure, thanks.

    Of course, I don’t actually KNOW what happened. Just applying the law to the “facts” available.

    –Andrew, @LawSelfDefense

MouseTheLuckyDog | January 14, 2014 at 11:32 pm

One thing I should make clear.
I am assuming that the timing of the incident is from the time the popcorn was thrown to the time the shot was fired, is less then three or four seconds.

If the popcorn was thrown, Reeves said “Hey the guy threw popcorn at me” and then pulled out the gun and shot, there would be no defense.

Hey, just saw we got side barred over at Ace of Spades HQ!

ace.mu.nu

Thanks, Ace!

–Andrew, @LawSelfDefense

What bothers me is the way the media frames this as if Reeves just pulled out a gun and shot Oulson for texting in a theater. That’s as accurate as saying Trayvon Martin was shot for walking in the rain at night.

One thing more than two decades in the newspaper biz taught me is, “NEVER believe what you read in the paper.”

I’ve personally witnessed a scene almost shoulder to shoulder with an award winning reporter, same view start to finish, and found the report so far off when it appeared as to wonder if he was writing about the same incident. I’ve been misquoted by reporters who were (and remained) friends, and in such a way that changed the entire meaning of my words.

It’s hard to imagine Reeves could have been justified in shooting in this case, but it is easy to imagine the actual events were quite different than as described.

Law Enforcement Personnel are not necessarily highly moral, well-trained, public servants without bias, grudges and ugly hyper-reactions.

Over the past year or so:
1. We have watched a Police Chief in the Zimmerman case ignore the law to play the tape of the calls for help the night of the shooting for the Martin family. Also, Zimmerman got a policeman’s son arrested for beating up a homeless man after the police tried to cover it up. (We know from the Zimmerman case and others in FL the sorry state of the prosecution and forensics in FL and probably the US as a whole.)

2. We watched the Christopher Dorner chase where cops shot several wrong people who just happened to be in similar trucks.

3. The cops shot a woman in DC who was driving out of control in her car with no show of a weapon.

4. Cops misbehaving and acting aggressively on motorcycles chased down and beat a man to death who was trying to get away.

5. Then there is this.

6. Police and fire department officials in NYC have been caught in a huge fraud scam.

The truth is, we do not live in a Norman Rockwell, CSI, Perry Mason, Dragnet kind of world.

The liberal media is really slipping.

I haven’t seen one report yet that the movie being shown, Lone Survivor, glorifies guns, which are evil, as is war, and so is directly responsible for causing the gun violence in the theater, which proves undeniably that guns, wars, and police officers all ought to be outlawed. Popcorn and cell phones may remain, but must be strictly regulated. Tax movie tickets to pay for it. What… you want to see babies die?

Just a few thought here.

First, this could involve the Stand Your Ground portion of the law. Reeves, could have moved or left the theater. He chose not to and was in a place where he had a legal right to be. The same is true for Oulson. He had the option of moving to another seat as well and chose not to.

Second, what people seem to discount is that Reeves was, apparently, the victim of a criminal attack, battery. Striking a person with anything, against their will, is a crime in Florida. Oulson was standing, facing Reeves, and only a low seatback separated them.

Third, Reeves. former occupation is irrelevant to prosecution in this case. Reeves actions are authorized under the same statutes as those of everyone else.

Now, even bringing in disparity of force, based solely upon the age difference, Reeves has an almost non-existent use of force in lawful self defense case. He will likely be found guilty of some level of illegal homicide, as it will be difficult to show that he had a reasonable fear of death or great bodily harm unless he used deadly force.

But, as in most such cases, both participants bear some of the responsibility for the outcome.

Mac45 writes: “First, this could involve the Stand Your Ground portion of the law. Reeves, could have moved or left the theater. He chose not to and was in a place where he had a legal right to be. The same is true for Oulson. He had the option of moving to another seat as well and chose not to.”

I disagree.

SYG is only relevant in circumstances where there would otherwise be a duty to retreat–that’s what SYG does, relieve you of that otherwise existing duty to retreat.

There is no legal duty to retreat or move merely because someone is texting in a theater. There is no legal duty to retreat or move merely because you’ve asked them to stop, nor even if they proffer an explanation for why they are texting and you don’t like their explanation. Mere bickering does not give rise to a legal duty to retreat.

Any legal duty to retreat would not arise until the confrontation had advanced to a point in which Reeves had to choose between either (1) taking advantage of a safe avenue of retreat or (2) seriously contemplate the imminent use deadly force. (Non-deadly force generally does not give rise to a legal duty to retreat, although there are some exceptions to this, such as MA.)

Even then, the duty to retreat would still only arise if a safe avenue of retreat was available.

It’s hard to imagine how the facts could be such that (1) Reeves had a reasonable fear of imminent death or grave bodily harm–as necessary to justify his shooting of Oulson as self-defense–and also (2) that a person facing such an imminent threat could safely escape it by stumbling over the feet of other theater-goers, while presumably dragging his similarly elderly wife along with him.

The fact that Reeves was earlier able to leave his seat and seek out a manager while he was NOT facing an imminent threat of death or grave bodily harm is, of course, irrelevant to the question of whether he possessed a safe avenue of retreat (for himself and his wife) once he was actually (as he necessarily claims) facing an imminent threat of death or grave bodily harm.

Of course, this is all getting pretty “inside baseball.” Were I sitting on Reeves shoulder in that theater, I would have urged him to move or leave very, very early on. But my reason for that doing so is prudence, not any legal duty; and absent legal duty there is no SYG.

–Andrew, @LawSelfDefense

    Let me explain my reasoning.

    In many states, and in Florida until 2005, retreat in the face of aggression was required, unless such retreat was impossible. The correction of this was one of the major points of the Stand Your Ground law and is illustrated in the last sentence of FSS 776.031 [” A person does not have a duty to retreat if the person is in a place where he or she has a right to be.”] and other sections of Chap. 776. In this case, both parties were entitled to be in the theater, having purchased tickets, been granted admittance and not directed to leave by the management. So, they took advantage of their “right” to remain where they were, under the law. Even Reeves had no duty to attempt retreat when he was the victim of a violent criminal offense perpetrated upon him by Oulson [battery with popcorn]. So, Stand Your Ground DOES apply here, as it does in all cases, in Florida, where aggression occurs against a person when that person is in a place where he has a lawful right to be.

    As to the impossibility of retreat, that is not readily obvious here. While retreat in a movie theater would be inconvenient or even difficult, it is by no means impossible. There is not enough evidence to support a claim that it woud be impossible to effect a safe retreat under the circumstances existing at the time.

    As retreat is not required under Florida law, in a case such as this, this is a straight forward justifiable use of deadly force in self defense case. Under Florida law, a reasonable belief that death or great bodily harm is imminent or that a violent felony has been committed or is being committed is necessary in order for the use of deadly force to be authorized. In this case, Reeves was the victim of a violent crime, the battery, but it was only a misdemeanor, not a felony and the instrument used, a box of popcorn, is unlikely to cause death or great bodily injury. This leaves us with the disparity of force between the two participants, if any, and whether it was reasonable to assume that a further physical attack, by Oulson, was imminent. This is what will have to be clarified. At this point, it is difficult to see how Reeves would have a valid claim to this defense, unless Oulson was actually climbing over his seat to attack Reeves. But, time will tell here.

    Stand Your Ground is a catch phrase trumped up by the media, similar to the “Make My Day” law in Colorado, that is designed to be catchy and provide a negative connotation. It really means nothing, in and of itself. However, the laws in Florida, as written, have the support of the majority of the citizens of that state.

      divemedic in reply to Mac45. | January 15, 2014 at 1:47 pm

      You seem to be painting Reeves the innocent victim of assault with a deadly snack. Remember that HE was the one that initiated the disagreement that led to the battery. Hardly an innocent victim here.
      Were I the prosecutor, I would paint him as an armed man just itching for a fight, who initiated an argument while allowing and encouraging it to escalate, because he knew that he had a semiautomatic trump card in his pocket.
      This is where the phrase “An armed society is a polite society” comes from.

        MouseTheLuckyDog in reply to divemedic. | January 15, 2014 at 4:18 pm

        Actually, according to ABC the way the fight began was, Reeves returned from talking to the manager. Oulson asked him where he went. Reeves told him he went to see the manager. Oulson then started yelling and arguing.

        Of that account ios correct, then it would seem that Oulson initiated the disagreement, not Reeves.

      Mac45 writes: “Stand Your Ground is a catch phrase trumped up by the media, similar to the “Make My Day” law in Colorado, that is designed to be catchy and provide a negative connotation. It really means nothing, in and of itself. However, the laws in Florida, as written, have the support of the majority of the citizens of that state.”

      Just because the media seems incapable of properly understanding the scope and application of “Stand-Your-Ground” as a legal concept doesn’t mean “it really means nothing.”

      SYG means something very definite. It relieves someone legitimately engaged in lawful self-defense from any legal duty to retreat before using force in self-defense.

      If you think that “really means nothing,” you might be interested to see how different are the outcomes of self-defense cases in the 16 states that continue to impose a generalized duty to retreat, compared to the 34 states states that do not impose such a duty.

      Having said that, that is ALL that “Stand-Your-Ground” does. It doesn’t provide immunity. It doesn’t grant aggressors self-defense rights. It’s certainly does not authorize a “shoot-first, ask questions later” manner of self-defense. It does not require that the evaluation of a self-defense claim be based entirely on the defendant’s subjective perceptions. All of that is either outright made-up or simply beyond the scope of Stand-Your-Ground.

      It doesn’t help, unfortunately, when even prosecutors, judges, and defense attorneys use the phrase “Stand-Your-Ground” to seemingly encompass every aspect of self-defense law, real or imagined.

      But their lack of intellectual rigor is no excuse for the rest of us to follow their lead. 🙂

      –Andrew, @LawSelfDefense

        But if this…”Reeves told him he went to see the manager. Oulson then started yelling and arguing.”…is true, then Oulson was actually the aggressor, not Reeves.

          You think “yelling and argued” makes someone an aggressor for the purposes of justifying a deadly force defensive response?

          There’s no evidence that Oulson ever used or threatened deadly force against Reeves. At worst, he was the aggressor in a non-deadly force conflict. If so, perhaps he could have been held criminally liable for simple assault or (with the thrown popcorn) battery. Neither are sufficient to justify a deadly force response.

          It was Reeves who initiated the use of deadly force. And purely speculative fears–coulda, mighta–do not a compelling narrative of innocence make.

          –Andrew, @LawSelfDefense

Any time I see a news report that makes me think “that makes no sense whatsoever”, it’s a sure bet that there’s an element of the story that is both critical to understanding it and that was completely left out.

It’s hard to imagine the circumstances under which I would ready a weapon and shoot someone unless the other person first demonstrated the capacity to inflict deadly harm on me or someone else and some plausible intent, but I wasn’t there. If the shooter blew a gasket, that I get, but I don’t believe that is often the case.

Let’s see now, a 43 year old man is aggressive enough with a 71 year old man that the younger man’s wife is trying to hold him back as he throws his popcorn in the older man’s face to initiate an attack. Should the older man have any reason to fear for his safety? Is a felonious assault on the older man occurring? Maybe:

http://www.jacksonvillelawyer.pro/lawyer-attorney-1361145.html

Actual text of the Florida statute:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0784/Sections/0784.08.html

    For 784.08 applies only in circumstances where a person is either convicted or charged with aggravated assault/battery on someone 65 or older.

    Oulson is dead. To my knowledge, Florida does not charge dead people with crimes, nor convict them.

    So, the applicability of 784.08 to this case seems questionable, to say the least.

    –Andrew, @LawSelfDefense

Andrew said “Florida does not charge dead people with crimes…”

So now you’ve really got my curiosity up!
Does any state charge dead people with crimes? 🙂

I think that Reeves’ reported behavior and demeanor prior to the shooting: his irascibility, inappropriate and irrational anger manifestations, are highly suggestive of an underlying cognitive impairment. At age 71, he obviously is a candidate for the onset of senile dementia (Alzheimer’s disease, etc.), and his preliminary behavior and reported demeanor makes him the aggressor, prior to any physical interaction such as throwing popcorn in self-defense (sorry).

If diminished capacity is an issue here, then this case does raise an ancillary issue regarding lifetime CCW for retired LEO, without any periodic qualification such as required for actively serving LEO, and in many CCW jurisdictions.

This is a simple case of a man, Reeves, expecting to be respected, and finding that respect not only not forthcoming, but having the disrespect tossed in his face in the form of popcorn. I feel sorry for the man’s wife and child, but not for the man himself, and doubt that the world is less well off without him. Thank God I don’t go to movies. Really. Thank Him.

It amazes me that no one here has looked at the actual environment where this occurred and the people involved, where they were and especially the lighting involved. If the theatre is anything like the ones I go to there is no overhead lighting during the trailers and the light is what emanates off the screen. Mr. Oulsen looking away from the screen could see very well; Mr. Reeves had a silhouette of Mr. Oulsen against the screen and the lighting changing as the scenes changed reducing his vision considerably, also at 70 something years old his eyesight is failing.

Now, knowing that you are in an altercation with a much larger man and something is thrown at your face, it could be a punch, an object…what do you do……?

    “Now, knowing that you are in an altercation with a much larger man and something is thrown at your face, it could be a punch, an object…what do you do……?”

    You ask the question, but what’s your answer? Shoot him?

    Speculative fears–“it could have been a punch, an object”–do not support a claim of self-defense.

    –Andrew, @LawSelfDefense

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