Order Denying Immunity in Popcorn Shooting Riddled with Legal Errors
Judge’s Defective Analysis May Justify a New Hearing
Curtis Reeves has been denied legal immunity from prosecution and civil suit over his fatal shooting of Chad Oulson, in an order issued today by Judge Susan Barthle (that order is embedded at the bottom of this post).
Reading Judge Barthle’s order, however, suggests that her legal analysis may be sufficiently defective so as to render this denial of immunity a miscarriage of justice, thus warranting another self-defense immunity hearing in which the proper legal standards and analysis are applied.
We have previously covered this case here at Legal Insurrection in numerous posts, including:
Self-Defense Immunity Motion In Florida Movie Theater Shooting (November 18, 2015)
“Popcorn” Shooting Trial Set For March (September 17, 2014)
Florida Theater Shooting Induces Another Round of “Stand Your Ground” Mania (January 14, 2014)
Judge’s Order Appears to Reveal Numerous Legal Errors
Florida statute §776.032. Immunity from criminal prosecution and civil action for justifiable use of force allows for legal immunity for a use of force committed as an act of lawful self-defense. This immunity can be sought in a pre-trial hearing, and is to be awarded if the defendant can persuade the hearing judge by a preponderance of the evidence that the defendant’s use of force falls within the bounds of lawful self-defense.
If the defendant is unsuccessful in their self-defense immunity hearing, they can nevertheless argue self-defense at a subsequent criminal or civil trial. Today’s order from Circuit Judge Susan Barthle denying Reeves’ self-defense immunity claim places him in precisely this position. Her order, however, appears to be based on a rather profound misreading of the law and a legal analysis plagued with errors.
These apparent errors are several, with the third being the most substantive and possibly warranting another self-defense immunity hearing. I’ll start, however, with the least substantive.
Judge Cites the Wrong Statute
First, the specific statutory authority cited by Judge Barthle appears to be simply mistaken. The second paragraph of Judge Barthle’s order reads in part:
Under §776.013(3), Fla. Stat., a person is justified in using deadly force when that person (1) is attacked in a place where he has a right to be, (2) is not engaged in any unlawful activity, and (3) reasonably believes it is necessary to use force to prevent death or great bodily harm.
In fact, §776.013(3) says nothing of the sort. The actual language of that paragraph reads:
(3) A person who is attacked in his or her dwelling, residence, or vehicle has no duty to retreat and has the right to stand his or her ground and use or threaten to use force, including deadly force, if he or she uses or threatens to use force in accordance with s. 776.012(1) or (2) or s. 776.031(1) or (2).
As Reeves’ use of force did not occur in his dwelling, residence, or vehicle—but rather in a public movie theater—§776.013(3) would appear to be entirely irrelevant. Indeed, the entirety of §776.013 deals strictly with defense in the context of one’s home, dwelling or vehicle, and thus would be irrelevant.
One can only speculate that Judge Barthle cited §776.013(3) because it contains the phrase “stand his or her ground,” and it has become common error to refer to these self-defense immunity hearings as “stand-your-ground hearings.”
In fact, self-defense immunity and stand-your-ground are two utterly distinct legal concepts. Indeed, the actual self-defense immunity statute—§776.032—makes absolutely no reference to “stand-your-ground,” and the numerous Florida statutes that mention “stand-your-ground”—§776.012, §776.013, and §776.031—make absolutely no reference to “self-defense immunity.”
On the facts of this case it seems unlikely that the issue of retreat/stand-your-ground would be at all relevant, given that the fight occurred in a darkened movie theater not conducive to efficient movement, the defendant is much older and likely less mobile than much younger opponent, and in any case the defendant would not have been required to leave behind his similarly much older spouse. Where safe retreat is not possible no legal duty to retreat exists, and thus the issue of stand-your-ground is utterly irrelevant.
Once again we see that conflating the distinct legal concepts and phrases of self-defense immunity and stand-your-ground only leads to confusion and complicates effective legal analysis.
Judge References the Wrong Legal Elements
Second, the relevant statute to apply in this case in determining the elements of self-defense of a person under Florida law is §776.012, and in particular the second paragraph of that statute dealing with deadly-force self-defense. It reads in relevant part:
(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
Here again, however, we find error in Judge Barthle’s legal analysis. §776.012 consists of two sentences. The first sentence defines when a person is justified in using deadly force in self-defense:
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
Note that this first sentence says nothing whatever about being attacked in a place where one has a right to be, nor not being engaged in any unlawful activity—two of the elements Judge Barthle purports are relevant to her determination of whether Reeves acted in self-defense.
These two elements are found in the second sentence of §776.012, but for an entirely different purpose—in order to determine whether a person is relieved of any duty to retreat before acting in self-defense:
A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
To put it simply, it is entirely possible for a person to lawfully defend themselves with deadly force even if they are in a place they do not have a right to be and even if they are engaged in illegal activity. All that either of those forms of conduct do is cost that person the privilege to “stand-your-ground,” they do not strip the person of the right to use deadly force in self-defense if the requirements of the law are otherwise met.
Granted, Judge Barthle dismisses these two elements promptly by stating that they are not in issue because Reeves was in a place he had a right to be and was not engaged in any illegal activity. In fact, however, these two elements are utterly irrelevant to the legal analysis she is undertaking. Raising them at all reflects a profound misunderstanding of the law applicable to the issues at hand.
Judge Fails to Consider A Second Statutory Basis of Justification
Third, and most substantively, we find yet more error in the apparent failure of Judge Barthle to consider an explicit provision of the relevant statutory language by which Reeve’s use of deadly force may have been lawful.
Specifically, the relevant elements to be considered in determining whether Reeves’ use of deadly force was lawful self-defense are to be found in that first sentence of §776.012. It tells us that Reeves’s shooting of Oulsen was lawful deadly-force self-defense if he reasonably believed it was necessary to either (1) protect himself or another from death or great bodily harm or (2) to prevent the imminent commission of a forcible felony.
Judge Barthle instead focuses her analysis entirely on only the first prong of justification §776012(2), whether Reeves’ use of deadly force was necessary to protect himself or another from death or grave bodily harm. With respect to this prong she finds Reeves failed to make his case by a preponderance of the evidence, largely because she found his testimony to be not credible and inconsistent with other evidence presented in the hearing. This judgment is, of course, entirely within her discretion as the finder-of-fact in this hearing.
The judge utterly fails, however, to consider the second prong of justification under §776.012(2). That is, Judge Barthle appears to have neglected to consider whether Reeves reasonably believed that his use of that force was necessary to prevent an imminent forcible felony. Indeed, neither the word “forcible” nor “felony” are to be found anywhere in her order denying Reeves self-defense immunity.
This failure on Judge Barthle’s part is substantive because there exists a genuine legal question as to whether a reasonable person in Reeves’ circumstances would have perceived an imminent threat of a forcible felony. In part this is a consequence of a a Florida statute that qualifies even a simple battery on an elderly victim as a forcible felony.
Specifically, §784.08 Assault or battery on persons 65 years of age or older; reclassification of offenses; minimum sentence provides in relevant part that:
(2) Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon a person 65 years of age or older, regardless of whether he or she knows or has reason to know the age of the victim, the offense for which the person is charged shall be reclassified as follows:
(c) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.
The facts in this case are sufficient to establish a prima facie claim that Reeves feared at least an imminent simple battery at the hands of Oulsen. Given that Reeves was in excess of 65 years at the time of this incident, a battery by Oulsen would constitute a third-degree felony—in other words, a forcible felony.
Under the language of §776.012(2), then, if Reeves reasonable feared an imminent battery by Oulsen he would be justified in using deadly force to prevent that forcible felony. If this were established by a preponderance of the evidence, Reeves would qualify for self-defense immunity under §776.032.
Yet Judge Barthle appears to have not considered this line of legal analysis at all. At least, it appears nowhere in her order of today denying Reeves self-defense immunity.
Judge’s Errors Were Not Harmless
I did not personally observe the arguments made by the defense in this hearing, and do not know whether defense counsel raised the “prevent a forcible felony” argument during the hearing. Perhaps they did not, in which case it may be too late to raise that argument now (at least, with respect to this self-defense immunity hearing). It would seem a rather shocking misstep on the part of defense counsel to overlook this argument, however, so I would prefer to believe that they did raise the argument.
If defense counsel did raise the “prevent a forcible felony” argument, however, and Judge Barthle nevertheless failed to so much as consider it in her legal determination of whether Reeves qualifies for self-defense immunity, I would expect this to be a failure of the bench of sufficient substance that the order denying immunity ought to be immediately appealed, and a new immunity hearing requested in which the proper legal standards are applied.
It’s quite possible, of course, that even had the proper legal standard been applied that a reasonable finder of fact would nevertheless still conclude that Reeves had failed to establish self-defense by a preponderance of the evidence, in which case a denial of self-defense immunity would be proper. Nevertheless, the fact that there appears to be clear error, and that the error cannot be said to have been harmless to Reeves’ claim to self-defense immunity, would certainly appear to justify a new hearing.
I suppose we shall see.
As promised, below please find Judge Barthle’s order denying Curtis Reeves self-defense immunity in this matter.
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Comments
Actually, if the deceased Oulson did in fact throw popcorn at the shooter Reeves, isn’t that a battery? Perhaps a trivial battery, but still a battery of a senior.
Yep.
–Andrew
Even if the popcorn throwing was technically a battery (even though no actual physical harm can result from such a thing) I don’t believe that would qualify as justification for use of deadly force.
Remember the Corey Lewandowski – Michelle Fields contretemps during the campaign last year? The arguments being made in the current case seem to suggest that Michelle Fields would have been in her rights to have pulled a .45 out of her purse and plugged Corey L. right between the eyes, then and there, just because he said something mean and kinda sorta bumped her.
Michelle Fields does not appear to be over 65 years of age, so no.
http://media.breitbart.com/media/2016/03/fields-640×480.png
–Andrew
I’m sorry but for some reason this made me think of Michelle Fields pulling out a Nerf Pistol and beaning Corey L. between the eye’s with a nerf dart. ROFLMAO. I don’t know why, it just did.
Yes, throwing the popcorn or even coming to punch Reeves in the face could be considered 3rd degree felony because is over 65, however, it would probably not be a “forcible felony” in which deadly force is justified. 776.08 Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
Based the evidence, there is nothing that Oulsen did that would have justified Reeves shooting him. He’s guilty of murder!
Actually he is innocent until a jury says he is guilty. I seriously doubt that he will be convicted of murder. Manslaughter is a possibility. I actually expect a hung jury personally.
“and any other felony which involves the use or threat of physical force or violence against any individual.” this is the key part which would make his actions justifiable, that and raising the simple battery to a felony because he’s old.
Andrew, don’t you you think the defense lawyers don’t understand or appreciate the distinction ignored or glossed over by the judge? The Motion should have been thoroughly briefed to provide a “roadmap” for the judge to follow. I had a case once where a Superior Court Judge, a former DA, did not understand the Statute of Frauds argument I was making in a civil case.
I don’t know the defense counsel in this case personally, but I’ve only heard good things about them from people in a position to know.
#shrug
–Andrew
But when the prosecution and defense briefed the judge, they should have cited the correct statute and made their arguments, nicht wahr? I’m going to go out on a limb and guess that the attorneys briefed the judge incorrectly, similar to Bradshaw v. Unity Marine.
Now of course the big question is whether the judge is just incompetent, or intentionally twisting the law.
Most times it isn’t a matter of competence, it’s a matter of inexperience. These cases are not “common” even with the amount of media coverage they get. Most Judges have just never handled a self defense case.
Watching this story locally, from the sad day it occurred. This is an angry, ornery old man who committed murder. He knew what he was doing and based on the wife’s initial reaction, she knew he was wrong. His defense attorneys are rightfully trying every trick in the book for their client from dementia to self defense. Bottom line, he knew he did wrong and this was murder.
I could see plea bargaining it down to Voluntary Manslaughter, but other than that, agree with your take on it.
Being an ordinary person not versed in the law, he and his wife both may have had the initial impression that what he did was wrong (this is one reason why you’re supposed to “lawyer up” – running your mouth may put you in trouble for no good reason). Who in that situation would have known that throwing a bag of popcorn at someone over the age of 65 in the state of Florida is a felony? Although his reaction may seem extreme, if it’s within the law and his rights, he and his wife’s perception of the incident and their feelings in the immediate aftermath are irrelevant.
That’s not actually correct, though. The shooter’s state of mind very much goes toward reasonableness or unreasonableness. The statute says “if he or she reasonably believes that using or threatening to use such force is necessary”. Note that “reasonably believes”? Note the “necessary”?
In this case, the shooter immediately began wondering why he fired. You can argue it either way — that he was justified because he feared being attacked and his comments are merely the natural reaction of someone who is horrified at the outcome, or that he was unjustified and his comments are a manifestation of his realization that he pushed things too far.
From what I’ve read in the news, I would say that he was not justified. But the news media lies and spins so much, especially when there is a self-defense shooting (e.g., the classic “he was a good boy, he was just getting his life back together”, about a meth addict killed in a home invasion), that I have no way of knowing what really happened.
“In this case, the shooter immediately began wondering why he fired.”
Can you remember where you read this and link it please, because that is significant and something I have not heard thus far.
The Florida self defense statutes were amended not too long ago. I noticed the judge did not follow the common practice of referencing 6he year of the statute in her citation.
So what if reeves gets another hearing. Unless the rules change, the wording of 776.012(2), which is the governing statute, is pretty much the same. It does allow for the use of deadly force to PREVENT the IMMINENT COMMISSION of a violent felony. Reeves would have to provide evidence that there was a reasonable belief that the commission of a forcible felony was imminent. However, as Oulsen was not armed and was not moving toward Reeves [in fact, it appears that he had moved away from Reeves] when Reeves fired, there is no evidence that the commission of any forcible felony was imminent.
This was a loser from the start. It was never going to succeed at an immunity hearing, as there was no clear-cut evidence that this was the lawful use of deadly force in self defense.
Now, if Reeves had threatened Oulsen, with the drawn weapon, when Oulsen had moved back and Oulsen had moved toward him a threatening manner, Reeves would probably have skated. Your average concealed carrier could probably claim that they simply reacted and did not know exactly when they could use deadly force. However, Reeves is a trained experienced former LEO. He should know under what circumstances he can legally use deadly force. And, those circumstances do not clearly exist in this case.
On to trial.
Guy throws popcorn at you and you respond with a bullet.
If I’m in that jury, you better be 105, in a wheelchair and sucking O from a cannula @ 2 PSI.
Actually, 2 liters per minute.
corrected.. thank you.
And once again you don’t know what you are talking about.
“It does allow for the use of deadly force to PREVENT the IMMINENT COMMISSION of a violent felony.”
The thrown popcorn constitutes a forcible felony against Reeves, Battery against a man his age is a felony in Florida.
“Reeves would have to provide evidence that there was a reasonable belief that the commission of a forcible felony was imminent.”
You mean like already being subjected to Felony Battery under Florida statute?
“However, as Oulsen was not armed”
Irrelevant, you do not have to be armed to be a deadly threat.
“and was not moving toward Reeves [in fact, it appears that he had moved away from Reeves]”
There is no evidence that Olsun was moving away in any meaningful fashion. In fact the fact that his wife was restraining him suggest otherwise. You can not tell from the video that he was moving away.
“This was a loser from the start. It was never going to succeed at an immunity hearing, as there was no clear-cut evidence that this was the lawful use of deadly force in self defense.”
There is more than enough evidence to consider a claim of self defense, Olsun was not innocent in this encounter.
“Now, if Reeves had threatened Oulsen, with the drawn weapon, when Oulsen had moved back and Oulsen had moved toward him a threatening manner, Reeves would probably have skated.”
Useless speculation.
“Your average concealed carrier could probably claim that they simply reacted and did not know exactly when they could use deadly force.”
Wow, you really don’t know what you are talking about do you? “I didn’t know that I couldn’t shoot him!”? Seriously?
“However, Reeves is a trained experienced former LEO. He should know under what circumstances he can legally use deadly force.”
As a trained experienced former LEO, he his held to no higher standard than anyone else, period. Sure they can bring it up in court but, legally it doesn’t mean a damned thing.
“And, those circumstances do not clearly exist in this case.”
In your opinion, which means exactly as much as mine…nothing.
“On to trial.”
Where he could very well be granted Self Defense by a Jury.
This is why people get into trouble with self defense in Florida.
What part of IMMINENT COMMISSION do you not understand? Once the commission of the crime has concluded, you are no longer justified to use deadly force against another. There are a number of cases where a person has shot a fleeing felon, been charged with a crime and convicted. This all about self DEFENSE, not about punishment for the commission of an offense.
As to having to be armed to be a deadly threat, you usually do unless there is a significant size and strength disparity. But, in this case, any such disparity was mitigated by the intervening barrier, the row of seats.
As to Oulsen moving away, he had already moved away. He was originally in the field of view and then moved away from Reeves outside the field of view. What is lacking here is any evidence that Oulsen was moving TOWARD Reeves. Remember, the burden of proof is on Reeves here, not the state.
There was never sufficient evidence for Reeves to prove that he acted in lawful self defense. He stands a fairly good chance of saying a jury, who may find him a sympathetic defendant, but in a motion for immunity, he was pretty much doomed to come up short. See, if Oulsen was attempting to reach over, or climb over, the intervening seats, when Reeves shot him, it probably would have been found to be lawful self defense. If Oulsen was preparing to throw a heavy object at Reeves, the same outcome is likely. However, none of that applied, in this case.
As to the difference between an untrained concealed carrier using deadly force and a trained, experienced person using deadly force, there is one. The more training and experience that you have in any discipline the higher standard to which you are held. Ask any LEO, doctor or nurse about that. In a case like this, where the lawful use of deadly force is not crystal clear, an untrained, inexperienced senior citizen might not have been charged. A jury would be less likely to convict such a person than it would a trained, experienced ex-LEO.
Well, my opinion seems to have been proven correct in the case of this hearing and yours does not. As to Reeves being acquitted at trial, I would estimate his chances at about 50/50. To gain acquittal, the jury will have to find Oulsen a very unsympathetic victim [not especially hard to do], Reeves a sympathetic defendant[we’ll have to see how this turns out at trial] and that a reasonable person, in Reeves position, would have reasonably believed that he was facing imminent attack which would result in death or great bodily harm and that the use of deadly force was necessary to forestall said imminent attack. If the defense can accomplish that, then reeves should walk.
Now, as I said, Reeves had just been the target of a violent attack. And, though Chapter 776 places the same restriction on the threatened use of deadly force as it does on the actual use of deadly force, in self defense, Reeves stood a much better chance of avoiding criminal charges if he had simply pulled his pistol and told Oulsen to stay back, rather than shooting him. When a dead body exists, prosecutors are much more likely to file charges. And, if Oulsen had charged Reeves, while facing a drawn pistol and an order to stay back, Reeves has a much stronger argument that Oulsen intended to cause him great bodily harm or death, as now there is a deadly weapon involved in the incident. If you are going to walk around carrying a deadly weapon for self defense, then it behooves you to actually train in the circumstance which allow that weapon to be used, legally, and in whjat manner it may be used. If you do not have that knowledge, you can end up like Mr. Reeves.
Except that the legal standard is different because the defendant is over 65, and, thus a reasonable fear of imminent aggrivated assault is sufficient – fear of imminent death or great bodily injury is not required.
This is incorrect. I suggest that you read the language of 776.012(2):
“(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.”
This is pretty clear and does not reduce the stautory standards for lawful use of deadly force.
If the popcorn had not been thrown, shooting the man would have been (possibly) unjustified. But having committed a felony against the defendant, it would be entirely credible for the defendant to fear an escalation from someone who has already demonstrated his inability to control his anger. The initial felony is what put him in fear of a more substantial attack. It was a tragedy, but if anyone is to blame for the fact that someone got killed over thrown popcorn, it’s the deceased. He is the one who put himself in a position in which he might face forcible self-defense, and he’s the one who put the defendant into a situation in which he had to make a decision whether or not to us deadly force. Sadly, sometimes people judge incorrectly, but that’s a risk the attacker chose to take. I can’t find fault with the defendant for the attacker’s bad choices. And I would find it hard to fault someone for making an incorrect legal judgment at a time when most of his computer cycles were consumed doing the calculus of survival.
Sorry, but you are reaching here.
In the first place, once the popcorn struck reeves, it was then impossible for him to PREVENT the IMMINENT COMMISSION of a forcible felony. The law does not allow for a person to “punish” another for committing a crime. That is society’s function.
Also, just because someone hs committed a forcible felony, in the past, force may not be used against that person unless there is reasonable grounds to believe that another attempt to commit such a crime is imminent. If the man is behind a barrier, which he must negotiate, and is not moving in the direction of the other person, then it becomes very hard to show that a reasonable fear of further imminent attack exists.
” If the man is behind a barrier…”
You consider a row of theater seats a “barrier”?
I’m 64 years old and could jump a row of seats in a second.
@Mac45
“The law does not allow for a person to “punish” another for committing a crime.”
“Also, just because someone hs committed a forcible felony, in the past, force may not be used against that person unless there is reasonable grounds to believe that another attempt to commit such a crime is imminent.”
The law does however allow you to use force to prevent the imminent commission of a felony. Yes, the popcorn was already thrown, but Reeves had every reason to expect further attack and even an escalation to the attacks. I mean Olsens reactions thus far had been over the top, why should Reeves not expect that to continue.
“If the man is behind a barrier, which he must negotiate,”
No reasonable person is going to consider a movie theater seat a “barrier” the only reason you are is because you know without that your persecution of Reeves falls apart.
“and is not moving in the direction of the other person,”
He didn’t have to move, he was already within arms reach.”
“then it becomes very hard to show that a reasonable fear of further imminent attack exists.”
Reeves had already been subjected to 2 consecutive batteries by Olsen why should he not have expected those unreasonable attacks to continue?
Also, all of your assertions that Reeves was moving away are nothing more than fantasy, you can’t tell that from the video and the fact that his wife was restraining Olsen at the time he was shot, suggest otherwise. In fact it would suggest that even Olsen’s wife expected him to continue to attack Reeves.
Barry, you better jump over barriers while you can. Next year you’ll be too decrepit, by law.
“What part of IMMINENT COMMISSION do you not understand? Once the commission of the crime has concluded, you are no longer justified to use deadly force against another. There are a number of cases where a person has shot a fleeing felon, been charged with a crime and convicted. This all about self DEFENSE, not about punishment for the commission of an offense.”
Now prove that Reeves had no reason to believe that Olsun was going to continue to attack? You can’t because all of Olsun behavior up to that point lead to the belief that he was going to continue to attack, he had already done so twice, why not again? That is why you are wrong.
“any such disparity was mitigated by the intervening barrier, the row of seats.”
ROFLMAO, seats….barrier….LMAO. (yea that’s all the response that ignorance deserves.)
“As to Oulsen moving away, he had already moved away. He was originally in the field of view and then moved away from Reeves outside the field of view.”
He had to come into the frame to get the popcorn and throw it, he wasn’t moving away as in disengaging, he was just returning to his original position, most likely to launch another attack.
“What is lacking here is any evidence that Oulsen was moving TOWARD Reeves. Remember, the burden of proof is on Reeves here, not the state.”
Except that his wife was restraining him. He had not moved from the position that he had launched 2 previous attacks from. You don’t necessarily have to move forward to be a threat.
“See, if Oulsen was attempting to reach over, or climb over,
the intervening seats, when Reeves shot him, it probably would have been found to be lawful self defense.”
When Reeves shot Olsun was moving back from throwing the popcorn, so he had just moved forward.
“The more training and experience that you have in any discipline the higher standard to which you are held.”
Actually I am a Nurse and have been for 22 years, not that it matters, you are just wrong. Show me the statue that says that? You can’t it doesn’t exist and as usual you are just full of crap.
“Reeves stood a much better chance of avoiding criminal charges if he had simply pulled his pistol and told Oulsen to stay back,”
Which is what he should have done, no question. I myself would have pepper sprayed him, consider it a little seasoning for his popcorn.
“If you do not have that knowledge, you can end up like Mr. Reeves.”
Actually I am very well trained, including having actually taken Andrews seminar. The difference is that I have actually trained in that knowledge, I don’t make it up as I go along as you seem to.
You seem irrationally confrontational. You also seem to be ignoring the reasonableness of confronting a man for scrolling around on his cellphone before the movie has even started, then provoking him a second time, and then shooting him when he complains about it.
I do hope you aren’t this abrasive in real life. If you are, you should probably stop carrying.
@Etaoin Shrdlu III
“You seem irrationally confrontational.”
LOL, awwww, did I hurt the snewflakes feewings?
“You also seem to be ignoring the reasonableness of confronting a man for scrolling around on his cellphone before the movie has even started, then provoking him a second time, and then shooting him when he complains about it.”
Now I see the problem you have no clue WTF you are talking about and don’t even know the actual sequence of events leading up to the shooting. Let me attempt to educate you, which I am sure you will ignore, but I do try.
Reeves, asked Olsen to put his cellphone away (it really doesn’t matter when he asked) to which he received an obscene response in the negative. Reeves then when to complain to management, i.e. when he is seen leaving his seat in the video, and came back to his seat.
When Reeves returned to his seat, Olsen, continuing to yell and curse, confronted him and asked if he had gone to management to complain. Reeves told him that he had, I am sure by this point Reeves was yelling and cursing as well. Olsen then escalated the confrontation by throwing his cellphone at Reeves, then snatching Reeves popcorn and throwing it in his face. Reeves then fires the fatal shot which goes through Olsen’s wife’s hand that she is apparently restraining him with and into Olsen’s chest.
See actually knowing the sequence of events can really help you not look ignorant.
“I do hope you aren’t this abrasive in real life.”
LOL, you must be new to LI, this is light banter for us. Perhaps you are just overly sensitive.
“If you are, you should probably stop carrying.”
While I truly value your opinion…..well not really and frankly for me to give your opinion any weight I would have to care if you lived, died, or grew mushrooms in the crack of your ass and nothing could be further from the truth. Oh, and btw I have carried for more than 20 years and have dealt with multiple aggressive assholes in that time, none of which have ended up with me shooting anyone. Also, making such a statement from simple posts is kind of..well stupid.
Yes, a lot of people get in trouble with these Self Defense laws. While they focus on the wording the statutes, you have always not only consider the “Letter of Law” but it’s SPIRIT or INTENT.
After the Zimmerman trial fiasco its easy to see that the Peter Principle is alive and well in the Fla judiciary.
While it was unjust to drag Zimmerman through a trial, in the real world politics do in fact play a role in whether someone in a high-profile case gets run through the wringer or not. Welcome to reality.
Unfortunately very true. The Zimmerman trial being a perfect example.
Thank you Andrew. I saw this story in the news and thought that “stand your ground” again being used as a catch phrase when it appeared to not be relevant. I doubted myself though when I saw it in the heading of the order. This judge appears to be incompetent.
The use of “stand your ground” as what should be properly referred to as “self defense immunity” is a purposeful misuse of the term, in order to sway the public using disinformation.
I think you mean “the elimination of the escape clause of self defense immunity”
No my point was that the left and the MSM purposefully use “Stand Your Ground”, which is the elimination of the “retreat” pillar of Self Defense, when they should be using the term “Self Defense Immunity” because they have always tried to imply that SYG is basically a license to kill. Therefore, instead of calling this hearing a Self-Defense Immunity Hearing, as is proper they call it a Stand Your Ground Hearing, to perpetuate that myth.
Question: Does the defense attorney have to raise an objection or argue “prevent a forcible felony” in the hearing to preserve that objection ?
If not raised during the immunity hearing, it may not be permitted upon (a possible) rehearing. It can still be raised as a defense at trial.
Does not “ignorantia juris non excusat” apply to judges as well as the rest of us?
https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat
Lysander Spooner wrote that it meant ignorance of the law excuses nobody, except judges, who without the excuse would be regularly guilty of violating the law.
And SCOTUS ruled the police are excused for being ignorant of the law, also. So the only people who are required to know the law are those who have no interest in it.
A jury trial seems appropriate.
Would a “reasonable man” think a bullet is an appropriate response to an attack by some popcorn?
Maybe, maybe not. That’s for a bunch of “reasonable men” to decide.
Personally, when I heard of this case, I initially thought “maybe”. After seeing the video, I tend more toward “maybe not”. But I make no unreasonable claims to be a reasonable man.
Were this situation a slam-dunk for the defense, the concept of legal immunity could save the expense and drama of a trial, and the “reasonable men” need not be bothered. But it’s not a slam-dunk.
Now all they need is a jury of “reasonable men”. Of course it’s Florida, so that could be a challenge … as usual.
I* resent that !!
___________________
* Florida resident
Obviously, you are not familiar with the OJ trial and judge Ito.
I do enjoy the legal edification, even though –like most juries probably–i glaze over pretty quickly.
Here’s the horse sense of it: Life is cheap, especially if you’re a dumb prick.
Oulsen (and Joseph Harvey, Trayvon, etc) was a dumb prick and got himself dead.
I think juries are going to send a message, whenever possible, that assholery is unprotected.
Does anyone recall a case a few years ago in Texas where some fat nasty Mexican punched a seated motorist in the face in a traffic dispute and got shot dead for it?
What’s the difference here?
Let me give you a REAL clear illustration as to the underlying problem that Reeves faces.
Suppose you are 70 years old. You are standing in your front yard watering flowers with plastic watering can. A much younger man is standing on your swale, within the public right-of-way talking on his cell phone. You are separated from him by a 3 foot high fence. He refuses. Words are exchanged. He reaches across the fence, grabs the empty watering can from your hand and throws it at you, hitting you in the chest. He steps back and throws his cell phone at you, hitting you with that as well. You then draw your pistol and shoot him DRT. How likely do think it is going to be to avoid being arrested under those circumstances? Not very. And, if you are a retired LEO with 25-40 years of experience do you think this will make it more or less likely that you will be arrested and charged?
The same conditions applied to Oulsen and Reeves. No deadly weapons were possessed by Oulsen or directed at Reeves. No significant physical injury to the older party. A physical barrier separating the two. The younger person not trying to climb over the barrier and not advancing when shot. So, is anyone really surprised that Reeves was charged and that his motion for acquittal for the lawful use of force in self defense was denied? Reeves may prevail at a jury trial, but it will not be because he used deadly force lawfully.
Should read “You are separated from him by a 3 foot high fence. You tell him to leave. He refuses.”
As you correctly stated, in Florida where I live, the “swale” is not the homeowner’s property. It is not even an easement. Like you wrote, it is the “public right-of-way”. From the curb, the next ten to twenty feet or so in the direction towards the residence, belongs to the municipality, even though the homeowner typically beautifies and maintains it. This makes my blood boil whenever my neighbors walk their dogs there, and conveniently forget to bring poop bags. TOBAL! . . . ‘Stand Your Adjacent Public Right-Of-Way Ground Against Dogs’
As soon as you turn 65 you can shoot them and their dog! Man! this world is getting too complicated for me. I don’t like people’s female dogs, they do it all in one spot, not like the male dogs who pee a little all over the neighborhood, to pee on my grass because it kills it for about three months. But poop, makes it greener!
@AB – this forcible felony thing in regards to seniors is something that you should, maybe, put in the next edition of your book, if you haven’t already (I gave my physical copy of the previous edition to a friend, so bought the latest one electronically, so I would always have it available – and didn’t see this the last time I scanned it).
After reading this article, I perused the AZ criminal code to see if we have something similar here, and didn’t find anything. Will try MT next, where we spend the other half the year. Old enough to now ask for, and get, senior discounts, this issue is of interest to me. Not that it is going to change the point where I utilize deadly force in defense of my self or my loved ones. But it may ultimately do so – the guy in MT who helps my shooting is 75, and told me last summer that the older you get, the harder it is to protect yourself and your loved ones (he first fired a handgun in self-defense in Vietnam, and most recently maybe a decade ago, with an exposure of his concealed firearm maybe 5 years ago scaring away another potential assailant). I am more fragile than I used to be, and not as quick, but my wife is much more fragile.
I can tell from the reading and comments on the FL laws that it is very complicated even for judges to get right. But the thing that always comes to my mind is what would I do and how would I do it in a case like this. I would be angry with anyone who threw popcorn on me but to be practical it isn’t an icee. I would probably yell at the guy and tell him to get away from me but drawing a gun at that point just doesn’t seem to allow for petty arguments. Only if he had put one foot over the back of the row of seats between us, we all know how difficult that is in a darkened theater, would I have felt a real threat. At that point, I would draw my weapon, if I was carrying it, and provide a warning. I know that distance is a big deal in self-defense and that if he was climbing over the seat he would be almost on top of me but try to remember that it was about popcorn, not a life threatening event. I know the lawyers will jump in here and say it doesn’t matter at that point but to me it would. I guess I’m still large enough to feel some ability to physically defend myself but in my mind, this would not be a draw-you-gun situation.
Throwing the popcorn was indicative of an anger management problem. Someone big enough and close enough to do grave physical harm, who has already demonstrated an inability to control his anger, can certainly instill sufficient fear in another person (and not just in an elderly man – who in this situation also had his wife’s safety to consider), that it is not unbelievable that he may have been in fear of his safety.
“I felt in fear for my life/in fear of grave physical harm” is totally subjective. When someone attacks another person, he’s taking a chance that he will instill that level of fear (even if he thinks his actions don’t warrant it). I’m afraid I’d have a great deal of difficulty blaming the shooter for the results of an altercation that the deceased was responsible for starting. If judges can’t get the law straight, why would anyone think that someone under the stress of a physical assault has the time, the mindset, or the knowledge to make a correct legal analysis of the situation in a matter of seconds while attempting to fend off what is perceived to be a potentially lethal threat? It’s ludicrous to demand such performance from anyone. The fact is, if you don’t start no sh*t, there won’t be no sh*t.
If two miscreants attack someone, and that someone responds with lethal force and kills one of them, the surviving miscreant can be charged with murder. Just because a one-on-one situation results in no surviving miscreants, that doesn’t mean the blame for the death should fall on the killer. I see this as a large part of the motive force of these types of trials – a desire to make someone, preferably someone still alive, responsible for a death.
Well, we certainly expect our LEOs to make the correct legal decision in a matter of seconds in a potentially lethal situation, don’t we? And Mr.Reeves was a LEO for some 30 years. Now what was your argument again?
Oh, yes. You were arguing that an untrained person, armed with a firearm, who finds himself in a potentially dangerous situation should be allowed to use any force that he wants to neutralize this perceived threat, simply because he mat be “afraid”. If that is what you desire, then you are going to have to get legislatures to change the laws on the books.
Key words in there is that Reeves “was a LEO for 30 years” as in no longer a LEO and therefore not held to that standard, no matter how much you might wish him to be.
Dave, the situation and the person that you describe probably should NOT carry a weapon. If that person is so afraid of a public argument then a gun will only make him do the wrong thing. Have you ever yelled at the driver in front of you or rolled your eyes at something someone around you said? These are all “Microaggressions” and can be construed by some cowardly people as hostile threats. Should they carry a gun? I’m sorry to be the outsider here but if you are a person who goes for your gun over any misunderstanding or public row, then you should not be carrying a gun. If this ex-cop had not pulled his gun he and the other guy would be enjoying life today. I am sorry for him and the victim’s family as well. Carrying a gun is VERY serious and is not to be done with the Old West mentality.
“then a gun will only make him do the wrong thing.”
A gun is a machine, it doesn’t “make” anyone do anything, period.
Also, “microaggressions” aren’t real. It is a made up term for snowflakes to feel more easily offended. The real term for what you describe is “microexpressions”, which is basically a part of Kinesics more commonly known as body language. Maybe you just used the wrong term. Also there is nothing “Micro” about “yelling at the driver in front of you” that is a pretty Macro expression of anger. 🙂 “Rolling your eyes” is a Microexpression but it isn’t necessarily an aggressive expression.
“who goes for your gun over any misunderstanding or public row,”
This was a bit more than a “row”.
“If this ex-cop had not pulled his gun he and the other guy would be enjoying life today.”
And if Zimmerman had not pulled his gun St. Trayvon of the Sacred Hoodie would still be alive. But it’s possible that Zimmerman would have been dead. The point being we don’t know what would have happened if Reeves hadn’t pulled his gun at the time he did, I mean it’s entirely possible that Olsen would have continued to escalate and Reeves would have been forced to shoot him later, we just don’t know so it is useless to speculate.
Frankly, even though I have been and will continue to argue the side of Reeves, I am on the fence about this one. Myself I think I would have pepper sprayed the loud mouth ass and seasoned his popcorn for him. But I am not a 75 year old frail man with his elderly wife who is facing an overly aggressive ass in a darkened movie theater.
“Carrying a gun is VERY serious and is not to be done with the Old West mentality.”
You are 100% correct, though there is no evidence of this here, I would also add that to many people carry without proper training.
Nice discussion, guys, but irrelevant because none of us were actually there at the time. If I was on the jury I’d have to take a hard look at the ballistics and pathology reports to see what actually happened, as they’ll say a lot. We know that Oulsen was out of frame of the camera, so he was not within direct striking distance to Reeves at the moment the shot was fired.
From the camera video (I hope) we know the angle of the weapon as it was fired (Reeves was sitting, claims he put his left hand out to protect himself from the charging Oulsen, but the video disputes that).
Now if the bullet trajectory shows that Oulsen was bent TOWARD Reeves, he was clearly charging the older man. If, however, the trajectory shows that Oulsen was standing upright (or even bending AWAY from Reeves) and NOT charging, then that puts Reeves in a difficult position because Oulsen was clearly not an imminent threat.
So, to me, it all hinges on seeing the trajectory. The mannequin with dowel for the trajectory will speak volumes.
All this other talk is just that, talk.
‘so he was not within direct striking distance to Reeves at the moment the shot was fired.”
From what has been released so far Oulsen never left striking distance, if he was close enough to get Reeves popcorn he was within striking distance.
From the video it appears that Reeves drew the gun from his pocket and then shot in one motion, took less than a second and pretty much just pointed the gun straight ahead and fired. so I would imagine the angles will show that Oulsen was standing pretty much erect and the bullet came in pretty much at a flat trajectory, but that is purely from the video. Also, before you go putting all your faith in “the dummy with the dowel rod”, remember the bullet when through Oulsen’s wife’s hand before hitting him, so it could have been deflected.
Here is why I think he might be justified in shooting. Reeves complains to management and then comes back to his seat. Oulsen apparently blew his stack and threw a phone at Reeves. No matter how much justification you try to put on it this is an over the top reaction to what at most would lead to you being asked to leave the theater. I am sure Reeves responded negatively to being hit with a phone, who wouldn’t?
Oulsen then reached across the seat and grabbed Reeves popcorn and threw it back at him. Reeves drew and fired pretty much before the popcorn hit the floor. Now for me here is the kicker, the bullet didn’t hit Oulsen first, it went through his wife’s hand and then into his chest. His wife is saying that she was “trying to deflect the bullet”, which of course is complete and utter BS, unless she gets ill around Kryptonite, which I doubt. What she was doing was what most wives would do, she was placing a restraining hand on her husbands chest trying to calm him down. That is the significant part for me, even his wife was trying to calm him down.
From Reeves position I can understand thinking this guy is gonna come over this seat and hurt me. Now would I have shot, nope, I would have pepper sprayed the guy until he was a shuddering mass on the ground, but I wouldn’t have fired. I very well might have drawn and confronted if I didn’t have my pepper spray with me. But I am not a frail 77 year old man with his elderly wife in tow who is facing a reasonably fit man who is many years my junior who’s response to being asked to put his phone away was to fly into a rage and start throwing things at me.
There is a tendency in these cases for people to kind of ignore the behavior of the person who was shot. Oulsen was out of control and in a rage, to the point that is wife was trying to calm him and possibly even restrain him somewhat.
I think this is a perfect example of why Andrew and other instructors that I have had tell you if you are gonna carry a gun, always carry a non-lethal option, such as pepper spray, I prefer the Pepper Foam, myself.
Reeves is a lunatic. He went crazy over Oulsen texting during previews. Actually went to get the manager to complain. What did he expect the manager do? Shoot the guy? Reeves started the argument and killed the man to end it. This sympathy for this killer amazes me.
“Reeves is a lunatic.”
Doubtful given his back ground.
“He went crazy over Oulsen texting during previews.”
All evidence thus far seems to point to Oulsen being the one who was losing control at the time. His actions were certainly not reasonable for someone complaining about using his cell phone in a movie theater.
“Actually went to get the manager to complain.”
Wow, how strange, I mean what the hell was he thinking going to the management to complain? I mean that is acting like a reasonable adult, parish the thought.
“What did he expect the manager do?”
Perhaps he expected management to ask him to put away his cellphone? As I have seen them do countless times in numerous venues.
“Shoot the guy?”
Thank you for removing all credibility from your rantings, saves me the trouble.
“Reeves started the argument and killed the man to end it. This sympathy for this killer amazes me.”
Your willingness to comment when you are apparently ignorant of the details of the case amaze me……actually no it doesn’t. Let me guess you are an anti-gun and anti-self defense nut to, right?
I agree! I see no evidence or sympathy for Reeves. In order to prove self defense, you have show Oulsen represented a threat that would result in death or “Great Bodily Harm”. There is nothing Oulsen did that even comes remotely close to that. Even if Oulsen was going to punch or grab Reeves, that does not rise to level of “Great Bodily Harm”.
I am surprised the state is no pursuing murder in the 1st because there was premedation on the part of Reeves as he took his gun to shoot Oulsen.
In fact, the state might even have a Death Penalty case because it appears the crime does include 1 Death Penalty aggravator:
(c) The defendant knowingly created a great risk of death to many persons.
By firing his pistol in a crowded movie theatre, many people were at risk for harm or death.
Like SCOTUS said:
“You can’t scream FIRE! in a crowded movie theatre.”
I see someone is playing “A Beautiful Mind” the home game.
Nothing that Oulsen did even remotely comes close to the grave risk of death or “Great Bodily Harm”. Even if Oulsen was punching him, that does not rise to level of “Great Bodily Harm”. The fact that his wife was trying to restrain Oulsen, isn’t good for Reeves too. That means Oulsen threat level was reduced. You really don’t even have to charge Reeves with Oulsen’s murder. He shot the wife with a firearm and hurt her and she’s not even a threat. Under for Florida’s 10-20-life, Reeves is looking at Life on that charge alone. Further, Reeves also fired his gun in a crowed movie theatre risking harm to a great many people because if the bullet went through Reeves, it could have hit more people in the theatre. No reasonable person or even a trained police officer would have shot in a crowded movie theatre. Reeves is guilty and he simply has no case.
Yes, bullet trajectory is important here. Since Reeves fired in crowded movie theatre the risk of injury to many was apparent. In fact, assuming you could prove premeditation, Reeves does qualify for the the death penalty because the following aggravator is present:
(c) The defendant knowingly created a great risk of death to many persons.
By firing his gun in a crowded movie theatre, Reeves created a great risk of death to many persons.
Or he was forced to fire his gun in self defense and the blame lays on Oulsen.
Now all the defense attorney has to do is turn your post into a legal brief. File it as a motion for reconsideration. Add a motion for disqualification of the judge, using your modified post as justification. Then the defense should be good to go with the remainder of the crappy case with a different judge (or the same judge sufficiently wary to be paying attention to her job)
I don’t think the judge in the Curtis Reeves case overlooked the argument that battery on someone over 65 years of age like Reeves is a “forcible felony” under s. 784.08, Fla. Stat. and so should have been part of a “prevent a forcible felony” alternative argument under s 776.012, Fla. Stat.
It seems settled under Florida case law since 2007 that a misdemeanor battery, even though enhanced to a felony because of the status of the victim (such as over 65 years old, or a law enforcement officer) does not become a “forcible felony” as defined in section 776.08, the catchall clause of s. 784.08 notwithstanding. See the case law excerpts below.
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“Battery of a person sixty-five years old or older is neither an enumerated felony nor does it contain the necessary element of “the use or threat of physical force or violence against an individual.” See § 784.08(2)(c), Fla. Stat. (2004); Hearns, 961 So.2d at 216 (“We reiterate that the only relevant consideration [when determining whether an offense constitutes a forcible felony] is the statutory elements of the offense. If `the use or threat of physical force or violence against any individual’ is not a necessary element of the crime, `then the crime is not a forcible felony within the meaning of the final clause of section 776.08.'”).”
Nelson v. State, 987 So. 2d 1261 (Fla 5th DCA. 2008)
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“We also note that the forcible felony statute specifically enumerates two types of battery: aggravated battery and sexual battery. See § 776.08, Fla. Stat. (2006). BOLEO [battery on a law enforcement officer] is not among them. Under the canon of statutory construction expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another. Young v. Progressive Southeastern Ins. Co., 753 So.2d 80 (Fla.2000). Had the Legislature intended to include all types of battery as forcible felonies, it would have listed simply “battery” rather than only the specific types enumerated. BOLEO’s absence from the list of enumerated felonies lends further support to the conclusion that BOLEO is not a forcible felony.”
State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007)
I think any appeal of the Order denying Reeves’ motion for immunity will be very quickly denied without an opinion (just a “per curiam affirmed” decision) in a week or two after an appeal is filed. There are just too many disputed facts in this case and the appellate court will defer to the trial judge’s determination of low credibility of Reeves’ testimony.
Then on to a quick trial, no extensions of time anymore, where Reeves’ will only get six jurors and his lawyers have already given away their whole defense strategy. I can’t see the State taking a plea of less than 15 years, the same as a death-in-prison sentence for a defendant in his seventies, if they offer a plea at all, usually preferring in a high publicity case like this to let the jury decide the case.