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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

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 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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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).


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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