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    Order Denying Immunity in Popcorn Shooting Riddled with Legal Errors

    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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    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.


    “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)


    “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.

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