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“Popcorn Shooting” Defendant Has Self-Defense Immunity Hearing

“Popcorn Shooting” Defendant Has Self-Defense Immunity Hearing

Goal: Show that shooting was more likely than not self-defense

https://www.youtube.com/watch?v=kliM2g2VfoM

It was three years ago last month that retired police officer Curtis Reeves, then 71 years old, shot and killed 43-year-old Chad Oulsen in a Florida movie theater. The case became known as the “popcorn shooting” because the shooting allegedly happened over spilled popcorn.

Reeves has been charged with second degree murder and aggravated battery.  He has pleaded not guilty to both charges and raised the legal defense of self-defense.

As usual, the media has been slathering the phrase “Stand-Your-Ground” all over this case, when in fact the case has nothing to do whatever with “Stand-Your-Ground” or any legal issues of retreat. What is relevant to this case, however, as it is to pretty much any self-defense case in Florida, is self-defense immunity.

Yesterday was the first day of Reeves’ self-defense immunity hearing, taking place in a Pasco County courthouse, which we’ll get to in a moment.

Before we do so, however, it’s important to understand just what that hearing involves, and what it doesn’t involve, in order to avoid unnecessary confusion of the legal issues in play.

As Usual, Media Unable to Understand Stand-Your-Ground

First, let’s make sure we all understand what “Stand-Your-Ground” actually means. It does not mean, for example, what ABC News claims it means in a post made as recently as yesterday:

Reeves is invoking Florida’s “stand your ground” law. The law allows people to use deadly force when they fear death or great bodily harm.

As usual, the media gets this law wrong from every perspective. First of all, as we’ll see in a moment, SYG and self-defense immunity are entirely different legal concepts, and are even found in entirely different statutes. SYG is not something that is “claimed.” Self-defense immunity, in contrast, is claimed, and that is in fact what Reeves is claiming in this self-defense immunity hearing.

Second of all, neither SYG nor self-defense immunity “allows people to use deadly force when they fear death or great bodily harm.” Certainly fear of death of grave bodily harm is one necessary condition for the justified use of deadly defensive force, but it is far from a sufficient condition. The law imposes numerous additional conditions before a use of deadly force will be justified as self-defense. Fear of death or grave bodily harm is not, alone, enough to relieve someone of criminal liability for their use of deadly defensive force.

Finally, in this case (as in the Zimmerman case) the issue of retreat, and thus the Stand-Your-Ground that would relieve a defender from a duty to retreat, is legally and factually irrelevant. There is no duty to retreat until the prospects for a physical confrontation is apparent—you can’t retreat from what cannot yet be reasonably perceived. Under the facts of this case, at the point the physical confrontation became apparent the 71-year-old Reeves was seated in a darkened theater, beside his equally elderly wife, with his ability to flee highly constrained by the narrow aisles, poor lighting, limited physical capability, and the proximity of the (claimed) aggressor Oulsen.

Stand-Your-Ground in a Nutshell

So what does Stand-Your-Ground actually do?

In brief, it relieves a defender of an otherwise existing legal duty to retreat before they can use force in self-defense. Importantly, however, a duty to retreat is only one of five elements that must be present in order for use of deadly force to be lawful. Further, these elements are cumulative.  This means that each and every one of these required elements must be present in order for a claim of self-defense to be legally valid. If any required element is missing, even one, whatever the use of force was, it was not lawful self-defense, and the person responsible faces criminal liability for that use of force.

In every state in the country there are five elements of a self-defense claim that must be met, unless an element has legally excused. Those elements are:

  • Innocence: The defender must not have been the physical aggressor
  • Imminence: The threat against which they are defending must be about to happen right now
  • Proportionality: The defender used no more force than necessary to neutralize the threat
  • Avoidance: The defender did not have a safe avenue of retreat
  • Reasonableness: The defender’s perception of threat was both genuine and objectively reasonable

In a Stand-Your-Ground state, like Florida, all that’s happened is that the element of Avoidance has been legally excused. Each of the other four elements of the self-defense claim must still be present, or the claim of self-defense fails as a matter of law.

That is, even in a Stand-Your-Ground state, the user of deadly force in self-defense must still have not been the aggressor, must still have been facing a deadly force threat about to happen right now, must still have used no more force than necessary, and must still have genuinely and reasonably have perceived the deadly force threat. All four of these elements must be present for the claim of self-defense to be sustained. If the prosecutor can convince the jury that even one of these has been disproven, the claim of self-defense fails completely.  Certainly merely being in fear of death or grave bodily harm, as suggested by ABC News, is not sufficient to sustain a claim of self-defense.

All a Stand-Your-Ground state is saying is that if you meet those four criteria they will not put you in jail for the rest of your life simply because you purportedly failed to take advantage of a safe avenue of retreat before defending yourself against a deadly attack.

Another way of stating this is that what Stand-Your-Ground effectively does is to re-define the scope of lawful self-defense, by expanding the range of conduct that would qualify as legally justified by having removed one of the five constraints (elements) on that use of defensive force.

Self-Defense Immunity in a Nutshell

Self-defense immunity, on the other hand, has nothing whatever to do with the definition of lawful self-defense. It does not modify the required elements of a self-defense claim, as does Stand-Your-Ground.

Instead, self-defense immunity merely says that if the defender’s conduct qualifies as self-defense, however self-defense might be defined, then the defender is entitled to immunity from criminal prosecution and civil suit.

So, these are two completely different legal concepts. Stand-Your-Ground redefines self-defense by removing one of five elements (Avoidance) but leaving the other four still in place. Self-defense immunity states that if you meet the required elements, whatever they might be, you qualify for legal immunity. You don’t claim Stand-Your-Ground, it simply exists as a legal standard. You do claim self-defense immunity, if you wish.

Different Legal Thresholds/Burdens Pre-Trial versus Trial

Another important consideration is the difference in standards of evidence and burdens of persuasion applied to a self-defense immunity hearing on the one hand and a criminal trial on the other.

At trial, once a defendant has sufficiently raised the issue of self-defense and gotten it into court in the first place (a very low threshold), it becomes the prosecutor’s responsibility to disprove self-defense beyond a reasonable doubt to the satisfaction of the trial’s finder-of-fact (usually a jury, but the judge in the case of a bench trial).

The prosecution accomplishes this by disproving, beyond a reasonable doubt, any one of the four remaining elements of the self-defense claim (innocence, imminence, proportionality, reasonableness). If the prosecution is successful, self-defense collapses. If prosecution fails to do so the jury will be instructed to acquit the defendant.

At the self-defense immunity hearing, conducted pre-trial, the legal standards are quite different. In addition, here there is only a judge acting as the finder of fact, there is no jury.

More specifically, at the self-defense immunity hearing it is the responsibility of the defense to convince the judge of each and every required element of self-defense by a preponderance of the evidence, rather than the responsibility of the State to disprove even one element beyond a reasonable doubt.

That is, to succeed in a motion for self-defense immunity the defense must convince the hearing judge that it is more likely than not that the defendant was the innocent party (non-aggressor) and that the deadly force threat to the defendant was imminent (about to happen right now) and that the defendant’s force was proportionate to the threat (no more defensive force than necessary) and that the defendant’s perception of the deadly force threat was genuine and objectively reasonable under the totality of the circumstances. If that can be done, self-defense immunity will be granted, and there will be no criminal or civil trial.

To look at it from the opposite perspective, in order to defeat a motion for self-defense immunity the prosecution must convince the judge that the majority of the evidence disproves any single one of those elements. If that can be done, self-defense immunity will be denied, and the matter can proceed to trial (both criminal and civil).

In the course of this hearing both the defense and the prosecutors are free to present evidence, including forensic evidence (e.g., the video captured in the theater, embedded below) and witness testimony, as well as to contest the other side’s evidence (e.g., through cross-examination).

Those, then, are the goals for the defense and prosecution in this week’s self-defense immunity trial, with the judge to decide which side has succeeded. The defense must show that a majority of the evidence supports every element of the self-defense claim. The prosecution must show that any single element of the self-defense claim is not supported by a majority of the evidence.

What Reeves’ Must Prove in Self-Defense Immunity Hearing

With that framework in mind, how might the defense be seeking to meet its obligation to support each element of the self-defense claim by a preponderance of the evidence?

Innocence: The defense needs to show by a majority of the evidence that it was Oulsen, rather than Reeves who was the physical aggressor. Mean words here are not enough. Either party simply being rude or obnoxious is not enough. The question will be who was the first to use, or threaten to use, physical force against the other. (There is also the question of the degree of force threatened, or more accurately the reasonably perceived degree of force threatened, which we’ll address in a moment.)

Imminence: The defense needs to show by a majority of the evidence that the threat presented by Oulsen was imminent, about to happen right now. That means both that the threat was not a threat to be realized some time in the future, and also that it was not a threat that was already passed. For example, in yesterday’s hearing the prosecution argued that whatever Oulsen’s throwing of popcorn might have constituted, once it was over it was over, and it could not be the basis for a defensive response by Reeves. On the other hand, a pretty good indication that someone is about to use force against you is that they just have. So, that will be the debate.

Proportionality: The defense needs to show by a majority of the evidence that the force used by Reeves was no more than necessary to neutralize the threat posed by Oulsen. Given that Reeves used deadly defensive force, then, he must have been facing a reasonably perceived threat of deadly force. The state seems likely to argue that Oulsen at worst threw popcorn, which cannot constitute deadly force.

The defense, on the other hand is likely to argue (correctly) that what matters is not the actual degree of aggressive force but the reasonably perceived degree of aggressive force, from the perspective of the defender under the totality of the circumstances. Also, what is being lawfully defended against is not the force that has already occurred but the imminent force that is about to occur.

Here it will be relevant that Reeves and Oulsen were not men of equal size, strength, and fighting ability, nor resilience. The 43-year-old Oulsen was clearly more physically capable and the 71-year-old Reeves clearly more physically frail. Both common sense and Florida law make clear that elderly targets of physical violence are far more vulnerable to serious bodily injury than are younger targets facing an identical physical threat. The defense will be arguing that Reeves did not fire his shot in defense against thrown popcorn, but in defense against a reasonable perception that he acting in defense against an imminent threat of grave bodily harm—even if that was in the form of a weaponless, bare-handed beating.

Reasonableness: Many of these same factors—differences between the two men in terms of age, strength, vulnerability—will come into play in evaluating whether a majority of the evidence supports the argument that Reeve’s perception of harm was both in good faith and objectively reasonable. In addition, there are other factors in the totality of the circumstances, including the fact that the theater was darkened, perhaps noisy from the action-movie trailers that were playing, that options for movement were limited by the narrow aisles between seats, that Reeves’ elderly wife was also present, and so forth.

In Conclusion

If Reeves can convince the hearing judge the each of the required elements of a self-defense claim is supported by a preponderance of the evidence, Reeves ought to be granted self-defense immunity and his vulnerability to a criminal and civil liability for the shooting death of Oulsen should be eliminated.

On the other hand, if the judge concludes that Reeves has failed to prove even one of the required elements by a preponderance of the evidence, Reeves ought to be denied self-defense immunity, and be subject to both criminal and civil liability.

So, that’s where things stand for this week. Keep your eyes here at Legal Insurrection for further coverage of State v. Reeves.

As promised, here’s that video of the confrontation in the theater.  All the action takes place at the far right-hand edge of the screen. The fellow  moving around is Reeves, Oulsen is off-screen except for an arm or such interjected into view.  Early on we see what appears to be a verbal confrontation, then Reeves leaves to go complain to a theater employee.  Reeves then returns to sit beside his wife, and the confrontation escalates to its fatal conclusion.  The point at which snow appears to fall across the video is immediately after the shot has been fired (the “snow” is dust that has been disturbed by the concussion of the gunshot.)

–-Andrew


Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.

[Featured photo is a screen capture of video of the self-defense immunity hearing taking place today.]

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Comments

It’s like the old Peter, Paul, and Mounds song…

When will they ever learn…when will they EVVVVVVEERR learn…???

Looked like Oulsen threw a substantial punch or two…

    Tom Servo in reply to rduke007. | February 21, 2017 at 5:30 pm

    I see what you saw, blown up it’s not a punch, looks like Oulsen snatches something away and then throws it back to Reeves – coke or popcorn, can’t tell.

    Having seen this video, this entire incident makes even less sense than it did before. A completely empty theater, and these two morons had to sit right next to each other just to aggravate each other?

    Reeves is going to find out that being assaulted by a deadly bag of popcorn isn’t going to be enough to get him off the hook. Oulsen already found out that the reason you don’t act like a dick in public and needlessly aggravate people is because you never know when you’re going to run into that needle in the haystack who’s got a gun and who’s suddenly decided that today is the day he’s gonna blow his top.

    2 lives ruined forever (many more when you consider families) just because 2 jacked up idiots decided they had to prove who’s dick was bigger.

      Can’t make that out in the video.

      Whatever happened, puch, popcorn, coke etc seemed very fast and I didn’t’ see Reeves as being the physical aggressor.

      Olinser in reply to Tom Servo. | February 21, 2017 at 9:35 pm

      He wasn’t ‘assaulted by a deadly bag of popcorn’.

      He can make the reasonable case that the soda was an initial attack to stagger/disorient him for a follow on assault with his fists. Since you can’t really see the guy for most of the video, this disproves none of that, and as was broken down in the story, as a 70ish year old man he has very reasonable fear of grievous injury from a much younger man attacking him.

      And as usual the moron DA has overcharged their case.

      There is no way he’s getting convicted of 2nd degree murder.

        Gremlin1974 in reply to Olinser. | February 23, 2017 at 5:52 pm

        Agreed, it should be noted that the popcorn was the second thing thrown by Olsen at Reeves if you watch between 1:17 and 1:26 you can see the cellphone that Olsen threw at Reeves.

        If I were the defense I would argue that once Olsen had thrown the cellphone at Reeves he was the clear aggressor and that Reeves perceived having his popcorn snatched and thrown at him was a means of distraction and a prelude to further physical violence. Which I would think is most likely the case, considering the gunshot happened basically before the popcorn hit he floor.

We’ve all been there next to an a$$hole but with the entire theater empty, why didn’t they just move back one row? I don’t understand this. I have a concealed carry permit but I wouldn’t think of it in a situation like this unless the guy had his hands on me and I could not step away. There is something wrong with both of them. Just like in the Zimmerman case there was something wrong with both of them.

    iconotastic in reply to inspectorudy. | February 21, 2017 at 6:34 pm

    There was a great book I read (and have bought for others) that had a few memorable quotes in it that seemed to apply to this situation:

    “The armed person who has “put away childish things” doesn’t lower himself to engage with jerks he won’t remember in an hour. He holds himself above speaking like a child, reacting like a child, and thinking like a child.”

    ‘In fact, having a gun means you have to take guff from everybody. And maybe even be real polite and say yes, sir, in the process.’

    Now if I could just remember where I read it 🙂

      moonmoth in reply to iconotastic. | February 21, 2017 at 10:49 pm

      The passage that you’ve quoted sounds as though it may have come from Massad Ayoob’s pamphlet, “In the gravest extreme : the role of the firearm in personal protection”. I used to give copies of it away to people who said foolish things about when they felt they’d be justified in using lethal force.

    ConradCA in reply to inspectorudy. | February 21, 2017 at 7:54 pm

    Zimmerman did nothing wrong. He belonged to the neighborhood watch and operated according to the instructions provided by the police. It was Trayvon who was the thug and attacked to teach that crazy axed cracker a lesson. Furthermore, Zimmerman showed remarkable restraint in using his weapon. It wasn’t until he was on his back with the thug on top bashing his head into concrete that he killed Trayvon in self defense. It was only Tyrant Obama the Liar’s need to lie his way into office using this case that ruined Zimmerman’s life.

      inspectorudy in reply to ConradCA. | February 22, 2017 at 9:17 am

      I do not feel that Zimmerman did anything wrong once Martin grabbed him but the whole thing with a “Neighborhood watch” is only supposed to be to alert the police of a suspicious person in your neighborhood. It was never meant to be an armed guard mentality. That is what I meant by both were wrong. Obviously, Martin was a thug who got caught with the wrong guy but Zimmerman has shown through many times since that there is something wrong with his thought processes. To go out in your neighborhood with a gun looking for trouble is not a very smart thing to do. What if one of his neighbors who didn’t know who he was did the same thing to him? Would you want an armed untrained neighbor skulking about your yard at night?

        An ‘armed guard mentality’ would have been the case if Z attempted to confront and or detain TM until police arrive. There is zero evidence that GZ did this. What the evidence did show is that GZ was trying to observe TM from a distance to direct police and lost sight of TM. When GZ was walking back to his car he was confronted and assaulted by TM. An eye witness neighbor heard GZ screaming for help. He went outside and saw TM in a mounted position beating GZ. TM was told to get off of GZ by the neighbor. TM refused and continued his attack. The eyewitness neighbor went back into his house to call 911.

        Zimmerman was on his way to the store to buy lunch supplies the same as he did every Saturday night. I would suggest you look up the Branca posts on this case as it is obvious that you have no clue as to what transpired that night.

        Another Ed in reply to inspectorudy. | February 23, 2017 at 12:00 am

        “To go out in your neighborhood with a gun looking for trouble” is a troubling concept. That is an example of blaming the victim for violence instead of the attacker. If Zimmerman was not armed and had been permanently incapacitated or killed by Martin would your comment then be “to go out in your neighborhood without a gun looking for trouble” or even the more neutral “to go out in your neighborhood looking for trouble”?

        What is your next argument, that women invite rape because they are sexually attractive when they wear anything more revealing than a burqa?

        Gremlin1974 in reply to inspectorudy. | February 23, 2017 at 5:57 pm

        Except either through lack of knowledge or intentional omission you are leaving out the one thing that blows a hole in your argument. While Zimmerman was a member of the Neighborhood watch at the time he spotted St. Trayvon of the Sacred Hoodie, he was on his way to the grocery store, not “on duty” with the Neighborhood watch.

Oh lord here come the legal beagles again.

It’ll go to trial and a jury won’t decide like obsequious law students.

If the old bird has decent counsel all he has to do is convince the jury he was being terrorized by a punk who got what was coming to him.

Walker/Harvey all over again.

Hell even the guy at the gas plaza (Davis?) got a hung jury the first time and only got convicted the second time b/c he had no resources left to mount a defense. And those punks were in a separate vehicle–not glowering directly over him and his wife.

Florida should do itself a favor a let the old boy off now, but it probably won’t.

    Olinser in reply to bildung. | February 21, 2017 at 10:58 pm

    Wow you’re ignorant.

    Dunn (the gas station shooter) was found GUILTY of all charges (attempted murder and assault with a deadly weapon I believe) except for 1st degree murder, and sentenced to 60 years in prison off just the first trial. Regardless of the retrial he was in prison the rest of his life.

      bildung in reply to Olinser. | February 22, 2017 at 11:25 am

      Yea Davis was the mope’s name; my bad.

      The larger point is that even a guy like Dunn, who lit up the vehicle as it was fleeing, is hard to convict on a murder charge stemming from a confrontation HE DID NOT START.

      Perhaps, Great Swami, you noticed Slager didn’t get convicted either for precisely the same reason.

      And then there was Joseph Walker.

      All this despite the fact that all you proceduralists GARONTEED they were going down cuz that’s how it works on Law and Order.

      Juries give tremendous weight to that most sacred of discretionary principles: Don’t start no sh!t, won’t be no sh!t.

      The old boy has a very solid chance to come out very light on this thing or to beat it altogether.

      Blueshot in reply to Olinser. | February 22, 2017 at 11:32 am

      And Dunn deserved it 100% as well.

Quick (maybe) question regarding Proportionality: Does the full spectrum of force apply to Reeves’ actions? Or only those levels of force he is physically and circumstantially able to apply?

Hypothetically, if Reeves had been carrying (for example) a can of pepper spray, and hosed Oulsen with pepper spray following the thrown object, that would certainly be more reasonable than using his gun. However, since he did NOT have pepper spray, that level of force was unavailable to him, as was “going fisticuffs”, which would be unreasonable against a younger, more physically fit aggressor.

I personally advocate carrying multiple defensive tools — ideally covering the full spectrum of force — whenever possible, but not everyone can do that. Since the elderly Reeves essentially had only the two extremes available — doing nothing (“taking it”, and equally valid, making his also-elderly wife “take it”) and using deadly force — how might that affect his claim of self-defense? Will it make any difference at all?

    Gunstar1 in reply to Archer. | February 21, 2017 at 7:51 pm

    You can’t use a gun in place of pepper spray just because you have a gun and not pepper spray.

    It doesn’t matter what other weapons one has or not, there is a definition in which deadly force applies as Andrew noted. Does the situation fit the definition?

    He could try and argue that as an elderly man he is in greater fear of great bodily harm than a younger person, but that is simply trying to fit the situation to the definition.

    In other words, if “taking it” means he is not going to suffer death or great bodily harm, then doing nothing is the only option.

I think the self-defense claim will ultimately fail. When you come down to it he responded to a punch/shove/popcorn with a bullet. Assuming such a spat was about to lead to a grave threat is not objectively reasonable. Absent other facts coming out, I think Reeves’ goose is cooked.

    There are often factors that we are not aware of that can be brought out at a trial. For instance, I have a herniated neck disc that can easily cause paralysis or even death with a sharp blow to my head. As long as I know that (and it is specifically documented in my medical records at my request) then it is not necessary for my assailant to know that. If he threatens me with a punch that is no different than if he says, “I am going to kill you.”

      BrokeGopher in reply to jack burton. | February 22, 2017 at 1:13 pm

      I think Reeves’ statement to the effect of “I’ll show you”, if it’s corroborated, will sink his claim of believing his life was in danger. Also, his actions have to be objectively reasonable and proportional to the threat. Nobody is going to say that one punch is appropriately responded to with a bullet. I stand by my prediction that his claim will fail.

        “Nobody is going to say that one punch is appropriately responded to with a bullet.”

        And to think, for a mere $24.99 you could speak intelligently on these issues. 🙂

        –Andrew

        Gremlin1974 in reply to BrokeGopher. | February 23, 2017 at 6:16 pm

        Actually I think objectively he has a better than 50% chance of gaining Self Defense Immunity if not during this hearing then during trial.

    Have to disagree on your point, the threat of imminent physical violence against a septuagenarian by someone 30 years younger and in by all accounts very good physical shape is no question a great bodily harm situation.

A wrinkle in the mix because it is FL…

FL law allows for use or attempted use of deadly force to prevent the imminent commission of a violent felony. It is my understanding that Oulsen not only snatched (Robbery 812.13 or Robbery by sudden snatching 812.131) and threw the popcorn at Reeves (Battery 784.03), elevated to a felony thanks to Reeves’ age (Assault or battery on persons 65 years of age or older 784.08). But Oulsen also threw a phone in an Otterbox case at him (Launching a deadly missile 790.19) which should also qualify as Aggravated battery elevated because of Reeves’ age. And I believe I remember hearing multiple reports that Oulsen was also screaming threats at Reeves, which would be Assault or Aggravated Assault, also elevated due to Reeves’ age.

That is at least 5 or 6 felonies that Oulsen had already committed before the shot was fired, I would imagine it would be reasonable to believe that further violent felonies were imminent.

Here is the motion for immunity:

http://curtisreevestrial.com/files/471.pdf

Here is the problem for Reeves, and why he was charged. Oulsen snatched Reeves popcorn from his hand and threw it at him. But, there is no evidence that Oulsen was actually attempting to climb over the back of his seat to attack Reeves. If he was, there would be strong grounds to argue that a physical attack was IMMINANT and, given the disparity in the size of the individuals, that Reeves was very likely to suffer grave bodily injury or death if Oulsen had succeeded in reaching him. However, if Oulsen was not trying to make direct contact with Reeves, imminence of bodily injury goes out the window.

A noted, it is lawful to use deadly force to defend oneself from an violent felony. So, snatching the popcorn from Reeves could constitute strong-armed robbery. On the other hand, it might be considered nothing more than theft. And theft is not a forcible felony. Simple assault, even against the elderly, is not classified as a forcible felony, but either a 2nd or 1st degree misdemeanor. Battery is usually a 1st degree misdemeanor, but is elevated to a 3rd degree felony, if perpetrated against a person of 65 yoa or more. Intentionally hitting Reeves with the box of popcorn and the cellphone could constituent a battery and, given his age, would elevate the charge to a felony which, under FSS 776.08 would be a forcible felony. However, the fly in the ointment there would be that, once the popcorn and cellphone have been thrown, the battery is done and Oulsen no longer has the means to continue the the commission of the battery, unless he produces another projectile or attempts to close with Reeves. Aggravated assault would be a forcible felony, but such an assault requires that a deadly weapon be used as a threat. A box of popcorn and a cellphone in an “Otterbox” case is extremely unlikely to be considered a deadly weapon. So, in order to persevere, before a judge, the defense has to present a convincing case that Oulsen was actively engaged in climbing over the back of his seat OR that a reasonable man would reasonably believe that such action was occurring or that snatching the popcorn from Reeves constituted the forcible felony of robbery by force.

It is possible that the defense will persevere here. On the other hand, there is an equal, or better, chance that the prosecution will convince the judge that the justification for the lawful use of deadly force in self defense, as outlined in FSS 776.032, does not exist. This is an uphill battle for the defense.

    mekender in reply to Mac45. | February 22, 2017 at 1:32 am

    The problem with your “once the popcorn and cellphone have been thrown, the battery is done and Oulsen no longer has the means to continue the the commission of the battery, unless he produces another projectile or attempts to close with Reeves” line of thinking is that is judging the situation after it is over.

    Reeves had no idea if Oulsen was no longer capable of being a threat, he only had the facts that he knew to be true, that Oulsen had already committed several felonies by both threatening and attempting to do him bodily harm.

    “A box of popcorn and a cellphone in an “Otterbox” case is extremely unlikely to be considered a deadly weapon.” The motion for immunity specifically talks about that. The combined weight of the phone and its case exceeds that of a cue ball, which is undoubtedly considered a deadly weapon when thrown at someone in anger.

      First, the issue of a cellphone being considered a deadly weapon for legal purposes. To my knowledge, no court has ever held that a cellphone is a deadly weapon, per say. What the defense is trying to do here is convince the judge that a cellphone will reliably cause great bodily harm or death, if it strikes another human being after being thrown at him. To do that, the defense likens it to a cue ball. Though a good try, I doubt that a judge is going to embrace this argument.

      Second, is the imminence of further attack. Even if we accept the premise that the cellphone constitutes a deadly weapon, once it is thrown, the use the deadly weapon is removed from the equation. Unless the attacker has additional deadly weapons, then the defender has to wait for the attacker to continue the attack. And, absent a deadly projectile, which there is no evidence that Oulsen still had access to, Reeves was protected from physical attack by the seats between he and Oulsen. The battery on Reeves, by popcorn box and cellphone, would legally constitute a forcible felony and it is lawful to use deadly force, in Florida, to PREVENT the commission of a forcible felony. Once the forcible felony has been committed, you can no longer prevent it from happening.

      So, in my opinion, a strict reading of the statutes involved should lead a judge to rule against the motion, unless some evidence is presented which would lead the judge to assume that a reasonable man would reasonably believe that the attack was continuing and that if Reeves did not immediately use deadly force to stop the perceived attack, he would suffer great bodily harm or death.

        Gremlin1974 in reply to Mac45. | February 23, 2017 at 6:41 pm

        All of which being very easy to say when you have the benefit of unlimited time, hindsight and video that doesn’t show how dark the theater was at the time. Reeves did not have those things, he had to make a split second decision, from the time Olsen reached and snached the popcorn to the time of the shot is just right at 2 seconds, and about a total of 5 seconds from the cellphone being thrown to the shot.

        Also, the phone doesn’t have to be a “deadly weapon” it just has to be a projectile and as you point out wasn’t a direct factor in the attach to which Reeves responded with deadly force, however it is relevant in that it could have increased his fear of further attack and shows that Olsen was willing to employ violence. Remember it is not whether the threat is real or not, it is whether the person thought it was real and if that fear was reasonable objectively.

          Actually, time was not really a factor for Reeves. According to the video, several seconds elapsed between Oulsen’s retreat behind the seats to Reeves shot. Remember, Reeves is a trained, experienced LEO. People with no experience in the use of deadly force in self defense always try to reduce the responsibility for the use of said force to the lowest common denominator. That may be applicable with the vast majority of people, who have little of no training and experience in this area. But, as the training and experience level of the participant increases, so too does the standard for competency. It becomes more difficult to use the incompetent boob defense effectively.

          And it is not whether a specific person THOUGHT that a threat existed. The standard is whether a reasonable man, in the same circumstances, would have reasonably thought that a threat existed. The argument which is usually raised in self defense trials is, “How did the defendant know that the victim did not present a reasonable threat?” The real question that has to be answered is what circumstances existed which would lead a reasonable man to reasonably conclude that an attack, which was likely to result in great bodily harm or death, was imminent? That is the $64000 question.

          Gremlin1974 in reply to Gremlin1974. | February 25, 2017 at 1:28 am

          @Mac45

          “Actually, time was not really a factor for Reeves.”

          Wrong it is a major factor, there was no significat time between Olsen’s second attack and the shot.

          “According to the video, several seconds elapsed between Oulsen’s retreat behind the seats to Reeves shot.”

          Wow, you are seeing a whole lot more in that video than the rest of us since you never see anything but Olsen’s arm. In point of fact it has never been reported that Olsen ever came around the seats, so exactly how did he “retreat behind them?”

          “Remember, Reeves is a trained, experienced LEO. People with no experience in the use of deadly force in self defense always try to reduce the responsibility for the use of said force to the lowest common denominator. That may be applicable with the vast majority of people, who have little of no training and experience in this area. But, as the training and experience level of the participant increases, so too does the standard for competency. It becomes more difficult to use the incompetent boob defense effectively.”

          You couldn’t be more wrong if you tried, they tried that same BS in the Zimmerman trial because he had taken classes he was more dangerous, it is not part of the legal question at hand.

          “And it is not whether a specific person THOUGHT that a threat existed. The standard is whether a reasonable man, in the same circumstances, would have reasonably thought that a threat existed.”

          Wrong again, it is did THIS person actually believe they were in threat of deadly harm AND was that belief reasonable.

          You should really by Andrew’s book, because you really could use the knowledge.

    tom swift in reply to Mac45. | February 22, 2017 at 2:26 am

    Reeves was constrained by the seats. Oulsen would have no trouble reaching him without having to climb into his row. And of course if Oulsen found other heavier missiles to toss at Reeves, he’d have had no need to get closer to inflict injury.

      Oulsen was also restrained by the seats ahead of Reeves. And, there is no evidence that Oulsen had secured any other projectiles or was even attempting to do so. So, those points are moot here.

      The important point in all of this is timing. If Oulsen had a further projectile weapon to throw at Reeves, then a reasonable case could be made to use deadly force to prevent it being thrown. If Oulsen was attempting to climb over the seats between he and Reeves, or was shot while reaching over so that he was in close proximity to Reeves, then a case could be made for immediacy of action in using the deadly weapon. But, at the time of the shooting, there is no evidence, of which I am aware, that either of these conditions existed.

      Reeves was armed with a distance weapon [a pistol] and had some protection from a physical barrier [the seats in front of him]. At the point the shot was fired, Oulsen had no more apparent projectiles to throw and was still on the other side of the physical barrier, the seats, and was not actively attempting to cross that barrier. Also, Oulsen’s wife was partially between Reeves and Oulsen and was attempting to restrain Oulsen, when Reeves fired. And, Reeves training and experience can work against him in this case. He was a trained, experienced law enforcement officer. As such, he would be expected to have a far greater knowledge of the law, especially when related to the use of deadly force.

      I am not defending Oulsen or arguing that Reeves was wrong to fire when he did. All that I am doing is pointing out that Reeves, because of the conditions existing at the time that he pulled the trigger, has a steep uphill climb to convince that immunity from prosecution exists here.

        Gremlin1974 in reply to Mac45. | February 23, 2017 at 6:50 pm

        Huge hole in your argument. It is not required for Reeves to know if Olsen had more projectiles. If a guy comes up to you and reaches behind him as if drawing a gun, does he actually have to have a gun for you to be justified in defending yourself with your gun?

        Your argument that Olsen was “constrained” by the seats is ridiculous, I am the same age as he was, not in good shape and overweight and a theater seat wouldn’t slow me down for more than a second. Olsen was already on his feet, and most likely being restrained by his wife.

        Also, as far as Olsen’s Proximity, I don’t know how far apart you think these seats are, but Olsen was well within arms reach of Reeves, regardless of the seat.

        “Reeves training and experience can work against him in this case.”

        What?!? Have you completely taken leave of your senses? So because I was an Army Ranger 20 years ago, I am more deadly and should be held to a higher standard? Seriously? Mac45 you are better and smarter than that, that argument is just beneath you.

          It is required that a “reasonable man” would “reasonably assume” that Oulsen had further projectiles and that there was a reasonable likelihood that such projectiles would be potential deadly weapons [not just a wallet or cellphone] and that the use of such weapons would be imminent. If Oulsen’s hands were empty and he was not reaching to a concealed location on his body, such a reasonable assumption can not be made. And in order to claim that you believed that he had a gun or other deadly weapon, you would have to produce specific circumstances that would lead such a reasonable man to that conclusion. And, no such circumstances exist here.

          The seats presented a physical barrier which would have constrained Oulsen’s movement toward Reeves. In order to effectively strike Reeves, Oulsen would have had to dive over the seats ot climb over them. There is nothing to indicate that Oulsen was doing either when he was shot.

          You can see how far apart the seats are. And, as evidenced by the fact that Oyulsen was able to grab the popcorn out of Reeve’s hand, the distance was not enough to totally prevent contact between the two. However, the distance is sufficient to significantly reduce the immediate threat of damage to Reeves, unless Oulsen’s body traverses the seat back. This did not happen.

          Yes Virginia, because your level of training is greater than that of untrained members of society, you are held to a higher standard. Ask any LEO in the US about that. Not to mention doctors, contractors and scores of others. In Reeves’ case, being a retired LEO, he has specific training in when he can and can not utilize deadly force against another. So, like it or not, that training is a factor in the case.

          Gremlin1974 in reply to Gremlin1974. | February 25, 2017 at 1:48 am

          “It is required that a “reasonable man” would “reasonably assume” that Oulsen had further projectiles and that there was a reasonable likelihood that such projectiles would be potential deadly weapons [not just a wallet or cellphone] and that the use of such weapons would be imminent.”

          Actually no it doesn’t matter one whit if Olsen did or didn’t have more projectiles or whether or not Reeves or anyone else would assume he did. Remember you don’t have to be armed to be a deadly threat. Here is a more clear cut example for you, do you assume that a gun has bullets in it or does there have to be some concrete proof that a gun is loaded before you can defend yourself.

          “If Oulsen’s hands were empty and he was not reaching to a concealed location on his body, such a reasonable assumption can not be made.”

          See this is where the time is important, Olsen grabs the popcorn and throws it in Reeves face, Reeves fires the shot before the popcorn can even hit the floor. So where in that less than 2 seconds in a darkened movie theater is Reeves supposed to make that evaluation? The popcorn could have been being used as a distraction so that he could pull a concealed weapon.

          “And in order to claim that you believed that he had a gun or other deadly weapon, you would have to produce specific circumstances that would lead such a reasonable man to that conclusion. And, no such circumstances exist here.”

          100% wrong since you do not even have to possess a weapon to be a deadly threat, just ask St. Trayvon of the Sacred Hoodie…oops don’t guess you can.

          “The seats presented a physical barrier which would have constrained Oulsen’s movement toward Reeves.”

          Yea, whatever, it certainly didn’t constrain him very much since he was able to reach Reeves and yank things away from him.

          “In order to effectively strike Reeves, Oulsen would have had to dive over the seats ot climb over them.”

          Except that he could already effectively strike Reeves which is demonstrated by snatching his popcorn, which Olsen was able to do without acutally getting his body in the frame of the camera, so he could have reached a good deal further than that.

          “There is nothing to indicate that Oulsen was doing either when he was shot.”

          You mean other than Olsen’s wife actively trying to restrain him as evidenced by the bullet going through her hand and then into his chest?

          “You can see how far apart the seats are. And, as evidenced by the fact that Oyulsen was able to grab the popcorn out of Reeve’s hand, the distance was not enough to totally prevent contact between the two. However, the distance is sufficient to significantly reduce the immediate threat of damage to Reeves, unless Oulsen’s body traverses the seat back. This did not happen.”

          You are absolutely correct Olsen never did lean over the back of the seat, yet he could still get to Reeve’s popcorn. Which means had he leaned over the seat he could have reached Reeves easily. The seat was basically zero barrer.

          “Yes Virginia, because your level of training is greater than that of untrained members of society, you are held to a higher standard. Ask any LEO in the US about that. Not to mention doctors, contractors and scores of others. In Reeves’ case, being a retired LEO, he has specific training in when he can and can not utilize deadly force against another. So, like it or not, that training is a factor in the case.”

          Nope, this is the same BS myth and fantasy that “if you have a black belt you have to be registered as a deadly weapon” or “because you are trained you should be able to wound them instead of shooting to kill” or “Because you were in the Army/Marines/Cop/Shooting Champion you are held to a higher standard” It has never been true and I invite you to show even one law saying that it is? I won’t hold my breath.

          My suggestion to you is to stop getting your information from procedural dramas on TV and gain some actual knowledge.

    Sian in reply to Mac45. | February 22, 2017 at 2:13 pm

    My big question in this that I haven’t found the answer to is in the nature of the wound to Mrs. Oulsen’s hand.

    Specifically, was the palm of her hand facing Reeves (attempting to protect her husband from the aggressor) or was it facing Chad (attempting to hold her husband back from assaulting Reeves). This could shed a lot of light on what was happening in the moment right before the shooting.

      The position of her hand would be meaningless, as it would merely reflect HER perception of events and intentions, and both of those are irrelevant to the core issue which is whether Reeves acted in self-defense. What’s decisive is HIS reasonable perception of events. What the wife thought matters not a whit.

      –Andrew

      I should clarify–the position of the wife’s hand cannot undermine Reeves’ claim of self-defense, but it could potentially buttress Reeves’ claim of self-defense.

      If her hand was in a “defensive” posture, attempting to protect her husband from Reeves, that doesn’t mean Reeves was the aggressor, it could as easily mean she didn’t want her husband shot despite the fact that her husband was the aggressor–an arguably reasonable position for a spouse, but one that does nothing to diminish Reeves self-defense claim.

      On the other hand, if her hand was in an “aggressive” posture, being used to attempt to physically restrain her husband from closing on Reeves, that could potentially support Reeves claim that Oulsen was the aggressor.

      –Andrew

        Yes, that’s mostly what I was getting at. If she’s accustomed to holding her husband back from getting physical with other people, that could be a factor in Reeves’ favor.

        Gremlin1974 in reply to Andrew Branca. | February 23, 2017 at 6:52 pm

        That was one of the big factors to me in that, regardless of her claims that she was trying to defend her husband from the bullet with her hand (faster than a speeding bullet, wonder if she can fly as well), it sure does appear that she was trying to restrain her husband.

    Gremlin1974 in reply to Mac45. | February 23, 2017 at 6:26 pm

    3 things that basically blow a hole in your argument.

    1: If Olsen is close enough to snatch popcorn from the Reeves lap or hand then his close enough to be a threat.

    2: He is well within the reasonable distance to be a threat, the theater seat being basically no obstacle to a fit 43 year old man.

    3: Your assertion that Olsen was not trying to cross the seat is contradicted by the fact that Mrs. Olsen was shot in the hand while trying to restrain her husband, Mrs. Olsen’s claims that she put her hand in front of her husband to “stop the bullet” are nothing more that drivel.

      1) Simply being close enough to grab or knock something from another person’s hand does not mean that you are close enough to inflict any significant damage upon that person. Remember, in order to utilize deadly force against another, legally, a likely infliction of great bodily harm or death must be present.

      2)Actually a 3′ high seat would be an obstacle to a fit 43 year old man. He would have to get over it either by climbing, leaping or diving. There is no evidence that Oulsen made any attempt to do any of these things.

      3) You are projecting here. Simply because Mrs. Oulsen placed her hand on his chest does not mean that she was actively restraining her husband from moving forward. She could have been attempting to block a potential shot. She could have been attempting to move him further away from Reeves to defuse the situation. Or she could simply have been attempting to calm him by laying her hand on his chest.

      So, again, based upon the totality of the circumstances, the is no clear lawful use of deadly force by Reeves. That is why I believe that he will not prevail in the immunity hearing.

        Gremlin1974 in reply to Mac45. | February 25, 2017 at 1:59 am

        1) Wrong again sparky, its called “The Tuller Drill or the 21 foot rule. Look it up.

        2)Except for 2 things, Olsen and I are the same height and I can get over a movie theater seat fairly quickly and I am not nearly in as good a shape as Olsen was. Second, it doesn’t really matter since he was close enough to reach Reeves without going over the seat, remember his body didn’t even come into the frame of the camera when he snatched the popcorn which means he still had at least room to lean forward and reach Reeves.

        3) Lets start with the “she was trying to block a potential shot” delusion first. From the time Reeves draws his gun and fires is a matter of milliseconds. Are you actually attempting to claim that Mrs. Olsen was able to see the gun and move her hand in the way? Because the only other reason she would have had to suspect the old man her husband was assaulting was going to shoot him is if she had prior knowledge that Reeves was armed.

        “You are projecting here. Simply because Mrs. Oulsen placed her hand on his chest does not mean that she was actively restraining her husband from moving forward. She could have been attempting to move him further away from Reeves to defuse the situation. Or she could simply have been attempting to calm him by laying her hand on his chest.”

        All 3 of which are evidence of her trying to restrain her husband, but thanks for keeping me from having to type it all out.

Does the fact the Reeves left to complain and returned to be with his wife carry any weight?

To me it means he has gone out of way to resolve this issue(without force) but the assaults continue and escalate from verbal to throwing property and then grabbing his popcorn…I think it’s reasonable to expect a physical assault will follow!

Oulsen started this and should have just apologized and turned off his phone.

Beside using your phone in a movie theater should be a capital offense!

    Gremlin1974 in reply to Merlin01. | February 23, 2017 at 6:56 pm

    IANAL but the only thing I can see this really affecting is that it would most likely end the previous confrontation legally and begin a new confrontation. So basically when Reeves left and came back it reset both parties “innocence”.

    Andrew can correct me if I am wrong.

    Gunstar1 in reply to Merlin01. | February 23, 2017 at 9:15 pm

    It carries weight in both directions. Strictly speaking it should not, but both sides will argue that it shows that each are correct.

    Defense: He was not some crazy guy looking for a fight because he did what you are supposed to do by going and getting management to deal with the situation. Management didn’t respond quick enough to diffuse the situation with a crazy guy.

    Prosecution: He was not scared because he left once and could have done so a second time. The guy was just irritated and shot the guy for no valid reason.

What AB neglected to point out here (I think) is that one reason that SYG is mistaken for immunity in FL is that the two apparently were passed together by the FL legislature. He has been pointing out the absurdity of mixing the two up since the issue arose with Zimmerman here.

AB – got your email this week that you are going to teach a class at Bristlecone Shooting in Lakewood, CO. Great indoor range. Up through the end of the year, I was going there 2-3.times a week to shoot. There are two sides to the range – Tach and Pistol. Tach lets you shoot anything < .50 up to 25 yards. Pistol is limited to handguns and .22. I preferred the Tach side because you could program the targets – for example to present for 2 seconds, then turn sideways for a bit, repeat 5 times for a 10 round magazine. Wish I could be there for your class, but gave up my Bristlecone membership in my move to AZ.

    You don’t need to be a Bristlecone member to take part in my class there, it’s open to all comers.

    You do, however, need to be in CO to attend, at least for the duration of the class. I can’t speak loud enough to be heard in AZ. 🙂

    –Andrew

    Gremlin1974 in reply to Bruce Hayden. | February 23, 2017 at 6:57 pm

    Well you are partially correct about the passage of the laws, but the confusion is and has been pretty much deliberate on the part of parties opposed to SYG and Self Defense in general.

    Gremlin1974 in reply to Bruce Hayden. | February 23, 2017 at 7:12 pm

    Take it from me, I have attended Andrew’s class, if you can go…GO! While his book is great as is his website, there is nothing like having the man himself there to pick his brain.

    Gunstar1 in reply to Bruce Hayden. | February 23, 2017 at 9:25 pm

    No, this is universal. Georgia has always had stand your ground (ie, no duty to retreat). It was common law since the founding of the state (or before the 1900’s at the very least).

    We still get news reports saying that the stand your ground law increased justifiable homicide (or various other claims) since it was passed in 2006.

    I will note again that you can’t blame a law that codified in 2006 for what was already common law for at the least 100 years. Yet that is exactly what the news and “researchers” do.

    What was new was the criminal and civil immunity. The press, researchers, and some lawyers do not know the difference.

I think there are several points that have been forgotten.

This initially was the “guy sdhot for texting case” not the “popcorn throwing case”. The narrative started to change when it became clear that Oulsen attacked Reeves.

What is more Oulsen’s wife was shot through the hand. How did she get shot? Her hand was on her husbands chest trying to hold her husband back.

Barring some audio recording with Reeves shouting something like “Come on attack, so I can shoot you.” I don’t think he can be convicted– or rather not found not guilty or … whatever.

Furthermore, what was actually happening is not what matters. What matter are what a reasonable man in Reeves situation would make of the situation. Two assaults in a shot period of time, uncertain of what the objects were.

    Jackie in reply to RodFC. | February 22, 2017 at 7:00 am

    Is it reasonable that Reeves pulled out a gun and started blasting away over the indignity of having popcorn thrown at him? No it’s not. If Olsen had thrown a punch instead of popcorn then I could understand this. He threw popcorn. You shoot as a last resort and you better be sure there is no alternative to protect your own life. I just don’t see that here. I see a guy who lost control.

      bobtuba in reply to Jackie. | February 22, 2017 at 10:14 am

      I’m not defending the idiot popcorn thrower, but to me this seems to be a case of Contempt of Cop with the albeit retired cop deciding the death penalty was appropriate. Makes me wonder what kind of crap he pulled while still active.

      mekender in reply to Jackie. | February 22, 2017 at 11:06 am

      According to the immunity motion, he threw at least 3 punches and an iPhone 5 in an Otterbox case in addition to the popcorn.

      Gremlin1974 in reply to Jackie. | February 23, 2017 at 7:06 pm

      First of all lets not try to sensationalize an event that is pretty simple. Reeves did not “start blasting away”, he fired one (1) shot.

      Also, it wasn’t just “Popcorn thrown in his face”, it was a cell phone thrown at him, then having popcorn snatched from his hand and thrown back at him, by a man who is half his age, who is standing within arms reach, screaming at him and being restrained by his wife, all in a dark theater.

      It is not required that Olsen actually be a deadly threat, it is only required that Reeves reasonably believed he was a threat, which I think is actually reasonable. You have the benefit of unlimited time, hindsight and night vision video, three things Reeves did not have.

      Also, no you do not shoot “as a last resort”, you shoot to stop a reasonably perceived deadly threat.

It seems that the five elements used to justify a self-defense killing are present in every case of elective abortion.

How could Reeves be sure the assault was over? Did Oulsen signify that in any way or was he still pumped up and threating more serious action? With Oulsen out of the frame who can say?

This is a hearing on a motion to grant immunity from prosecution due to the use of force in lawful self defense. If the defendant prevails, by a preponderance of the evidence, he goes free and the case is over. If the state prevails, nothing has changed. The status quo remains and Reeves will go on to trial. Also, this involved a homicide. A man is dead, here. That is a serious matter. So, the defense will have to put on a strong case that Reeves action meet the statutory requirements for immunity.

In a jury trial, this would be quite different. Not only would the prosecution have to prove, beyond a reasonable doubt, that Reeves actions did not meet the statutory requirements for the lawful use of deadly force in self defense. Also, given the differences in the ages of Reeves and Oulsen and the fact that Oulsen was the initial aggressor and had not clearly retreated from the field of battle, it is quite likely that Reeves would be able to convince one or more jurors that he was reasonably justified in using deadly force.

This is the situation that one faces when they use deadly force against another. As I said, unless Oulsen was still armed with a projectile, then Reeves should have waited until Oulsen was clearly attempting and able to physically attack him, before he fired. And I just do not see that being the case here.

    Gremlin1974 in reply to Mac45. | February 23, 2017 at 7:08 pm

    I think he has a chance in the hearing, depending on how good his Lawyer is, but I also agree that he would have a good chance of convincing a jury.

I’m gonna guess that this one will go to trial. There’s enough wiggle-room that Reeves was the aggressor, and eyewitness accounts put him as belligerent, kicking the back of Oulsen’s seat and threatening him, but it’s also clear that Oulsen was a physical threat who had to be in some state of rage prior to the shooting. Snatching Reeves’s popcorn and throwing it at him, followed by the cellphone, well, isn’t that two or three felonies right there when stacked with Elder Abuse?

The robbery and battery could be taken as clear indications of an imminent physical attack, and I’m sure that’s what the defense will try to show.

Richard Aubrey | February 22, 2017 at 7:42 pm

I expect the jury will have an easier time putting themselves in Reeves’ position than Olsen’s place. People like Olsen are not likely to show up for jury duty.
I wonder what Olsen’s character is, whether it’s allowed in or not. I suspect the jury will infer it. Somebody’s going to wonder, if not say, whether Olsen is like this a lot. Who else has he assaulted, terrorized threatened?
“needed killin'” is not allowed in law, but it would be an odd thing if nobody in the jury pool, if not the jury, wasn’t wondering about it.
Remembering Haver/Walker. The prosecution had to prove that Fatboy wasn’t a threat (doing road rage stuff) so Walker should have driven away, while proving Fatboy was such an obvious threat that Walker should have jumped in his car and driven away. That needle didn’t get threaded.
Would Oulsen have taken after a younger, fitter guy this way? The jury will wonder.
Which brings up a question; suppose he did go after a younger, fitter man who, feeling himself threatened, punched him back and, surprisingly, killed him in some accidental fashion. Same requirements? After all, what’s more deadly than somebody ending up dead?

    If the State seeks to argue that Reeves was the physical aggressor, it’s quite likely the defense can get into evidence any character evidence on Oulsen that would support the counter-allegation that it was Oulsen who was more likely the physical aggressor.

    I expect the State will avoid this problem by not alleging that Reeves was the aggressor, but rather by attacking other elements of Reeves’ self-defense claim (e.g, proportionality).

    –Andrew

Richard Aubrey | February 23, 2017 at 7:42 am

Is there a caveat to proportionality when there is a large gap between the least-but-possibly-effective technique/weapon available and a gun? For example, a large, fit man with combat arms experience and martial arts current could be expected to use those techniques against somebody who’s unarmed and attacking rather than shooting the guy.
A frail, older person who went to the gun because he had no intervening techniques would be excused. How about the first guy?

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