Sometimes we're our own worst enemy

[WyMark]

Yes, we are. That includes convicting this man in the media. I recall recently two mens' lives being ruined by the media when it turns out they acted lawfully in self defense. Zimmerman and Wilson. Turns out the media doesn't really report things very fairly or accurately.

When factoring in self defense it is fear in the mind of an individual at the time, not from internet commandos sitting behind computer screens on their couch at home.

The shooter was over 70 years old. The aggressor was 43. I'm unaware of any 70+ year old that would last more than 1 good punch from a fit 43 year old. The 43 year old struck the shooter twice - one assault by hitting him with an object (we later learn it's a phone) and also by grabbing his possession (his popcorn). We can downplay and trivialize these but they are legal assaults x 2. Sure it does factor in that they were minor assaults, but the fact remains that the shooter apparently tried to do the right thing by complaining first to the guy, then to management, and was lawfully seated in his seat when he was assaulted. Remember, the video is in IR. We can see. But the theater was dark. He would have just seen the figure of a man between him and the only light in the room, a movie screen, when the man assaulted him twice.

He would not have known the mans intentions or whether he had a knife or gun. But any reasonable person, especially and geriactric person, could reasonably fear serious bodily harm is imminent when a 43 year old comes at him and his wife. I think there are valid defenses.

Between the assaults with the popcorn and phone and gunshot there is a small window of time, maybe a second or two, it's almost instant.

Surely it could have been handled better by all involved. That's an important point to think about. I'm not advocating to shoot people over this minor avoidable incident. But it does not appear to me the man has clear criminal culpability. He was in an armed defensive posture, which is totally lawful in this situation. He was defending himself from an unknown attacker with unknown abilities and weapons in a dark room. He was assaulted twice in a dark room by a man 30 years younger and presumably a man that could have killed this old guy easily, given average ages and comparative strength. Knowing only this, I'd say it was a tragic but lawful shoot.

I guess I disagree with the entire premise of this post (except that it could have been handled better by all). The old guy was the aggressor in this situation. He picked the fight, and then he continued to escalate. When the victim got fed up and reacted, the aggressor shot him. If the age disparity is a factor at all, then why did the old guy pick a fight with someone half his age whose capabilities he had no way of knowing?

The aggressor left his seat, and left his wife behind, to go and complain to management. Why not just move seats? Let the whole thing go and enjoy the movie?

Arguing against myself, I'd say there are reasons that it may not be a lawful shoot.

Ok, we do agree on one point then.

 

[Kosh75287]

Definition(s)

Hey, JohnKSA, is "preposterous" considered an insulting or ad hominem term?

 

[Frank Ettin]

Hey, JohnKSA, is "preposterous" considered an insulting or ad hominem term?

I'm not John, but I'll provide the English lesson anyway.

I used "preposterous" as an adjective modifying the noun, "statement." As such, it was not ad hominem or an insult because it was not directed at a person.

The word "preposterous" means:

: contrary to nature, reason, or common sense : absurd

And therefore, the statement was absurd or contrary to reason.

I stand by my comments.

 

[Koda94]

I guess what I don’t understand here is that while we all agree the cop could have, and maybe should have done something different, that we are not holding the popcorn thrower to the same level of expectation, especially in light of evidence that proves what went down is much different than what the media has reported?

or do you guys still not see the part where somebody assaulted a 71yr old man sitting down?

and until further evidence is shown, there is no evidence to say the deceased was not advancing for another attack, in fact there is evidence to suggest someone was attempting to hold him back...

 

[JohnKSa]

If someone said a person is preposterous, that might be considered an insult. Pointing out that someone is saying preposterous things probably won't make them feel good, but it's not an insult.

But any reasonable person, especially and geriactric person, could reasonably fear serious bodily harm is imminent when a 43 year old comes at him and his wife.

I agree. But if he waits until the person has retreated and then shoots--as is clearly seen in the video, it's hard to make the same point.

As I see it this man's options were limited.

Not at the point that he shot. At that point the popcorn thrower had already retreated and the shooter had the option to sit there and do nothing since the assault was over and the person had retreated, get up and leave since no one was preventing him from doing so, or shoot. He chose to shoot.

And worst of all, he chose to open his mouth and voice the purpose of his shot--to teach the man not to throw popcorn.

I'd say you'd have a VERY good self defense claim.

I'd say you need to watch the video and read the eyewitness accounts again.

To be fair, you said exactly what I would expect the man's defense attorney to say. He's gotta try something if his client decides not to plead guilty. But it's going to be a hard sell unless the jury isn't allowed to see the video and the eyewitness accounts who related the shooter's exclamation aren't permitted or turn out to be false.

Well, equally ridiculous is the notion that I must go around the world in fear and yielding to every bully that wants my lunch money or wants to humiliate me in front of my wife by kicking sand in my face.

This discussion is about when it's legal to shoot someone in self-defense. It's not legal to shoot someone for "being a bully", "humiliating you in front of your wife" or "kicking sand in your face" because none of those things create a reasonable fear that death or serious injury is imminent.

Every time someone tells me to move my car from a public spot, I must go move it?

No, you don't have to. But you also can't legally shoot them for asking either.

When the bully comes and tells me and my wife to move from the booth at Denny's because that's "his seat" I must move?

No, but you can't shoot him for being a bully either.

When the bully threatens me with immediate severe bodily harm for my wallet, I must yield and give it to him?

Aha! Now we're talking about a different scenario. If the person has the means to carry out the threat and you reasonably believe he intends to do so immediately then you would likely be justified in using deadly force in self-defense depending on the rest of the circumstances.

At some point for human dignity and safety we get to stand our ground against bullies.

You always have the right to stand your ground against bullies, but that's not what we're talking about. We're talking about when you have the right to shoot them in self-defense.

And by the way, just because you have the right to stand your ground against bullies doesn't mean it's always the smartest option to take. De-escalating a situation that looks like it has significant potential to turn violent is a smart thing to do. That doesn't mean you have to do nothing at all--in this situation, the shooter could have, as you pointed out, likely have pressed charges against the popcorn thrower had he chosen to take that route instead of choosing to shoot him.

 

[leadcounsel]

The media has struck again. There are many ways this story could be painted. Here's a different suggested headline:

"Elderly retiree ex-police captain defends himself against multiple attacks in dark movie theater by biker man almost half his age, while biker's wife tried to restrain him and was also shot by accident." Obviously this one is more pro-gun and pro-defense.

So, this requires actually watching the video and reading comprehension, and also understanding the law of self defense and how a subjective reasonable person view is applied.

Ignoring the veiled and carefully constructed personal attacks which would get others infractions or bans.... I'm don't recognize ANYONE ELSE here who is an actual trial lawyer; I'm the ONLY trial attorney here having handled criminal cases as both prosecutor and defense lawyer...

Let's look at the actual defense law in Florida (full disclosure, I'm not licensed in Florida and none of this is legal advice. Go hire a FL lawyer if you're seeing legal advice).

776.012 Use or threatened use of force in defense of person.—
(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
(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.

We start with the premise of INNOCENT UNTIL PROVEN GUILTY. That whole pesky Bill of Rights 5th Amendment. It comes shortly after the 2nd Amendment. You all might have heard of it.

I would next give significant deference to a retired police captain, who apparently tried to de-escalate by notifying management of the issue.

I've watched the link video multiple times. The old man did absolutely nothing illegal, unethical, or wrong. Stupid and regrettable, but not criminal. We don't know what was said between the two - probably some offensive banter. According to witnesses the old man reported the 43 year old to management for his rudeness. Whatever was said between the two, we know there was ZERO justification for Oulsen to get out of his seat, and twice assault Reeves. We SEE two separate attacks, both are unlawful assaults against the 71 year old Reeves by someone nearly 1/2 his age and on average significantly more physically capable. It's legally irrelevant that he was struck with "just a cell phone" or that it was "just popcorn." That's a red herring. These are in fact assaults and unlawful. Was Reeves supposed to wait until Oulson drew a weapon, or knocked him unconscious with a head punch?

The two attacks (combined with whatever verbal threats were presumably issued) were enough to raise fear in this 71 year old. This point seems to be lost on some here. There was under 5 seconds between all attacks and the defense. So, he's attacked once, then again, and then immediately shoots. There was no "retreat" by the 43 year old, as suggested. There's no indication he was withdrawing from the attacks, or escalating them. IT WAS A DARK ROOM. HE COULD JUST HAVE EASILY BEEN DIGGING FOR A KNIFE OR GUN. Not sure how this point is lost on folks.

We also know the 71 year old's state of mind: When he was taken into custody and told the police in summary, "It scared the heck out of me. I thought he was going to beat the tar out of me."

So, folks here would rather have a situation where abusive bullies get to push around the elderly people in public and what, force people to be in fear and flee?

This discussion is about when it's legal to shoot someone in self-defense. It's not legal to shoot someone for "being a bully", "humiliating you in front of your wife" or "kicking sand in your face" because none of those things create a reasonable fear that death or serious injury is imminent.

It IS when combined with hostile threats, followed by aggressive actions by a man who is superior in size/strength/physical ability and is in attack mode. We all know that a person with a hidden knife can end you in an instant. Are you wait in the dark room until the instant you see the flash of blade toward your throat? I'd venture no. Many homicides start out as trivial pushing and throwing things until the aggressor pulls a weapon. Some might say Reeves was the aggressor, but I cannot see it.

We've all been to the movies. You can barely see the seat in front of you. Again, imagine some man standing right in front of you, after threatening you and striking you twice. Easy to say what you'd do, but harder to really live it.

On another note, Reeves does have a problem with the aggravated assault done to Mrs. Oulson, since he apparently shot her hand with no justification. He'll be convicted for sure on this one under a theory of negligence and transferred intent.

Finally, if the headline had read that 71 year old Reeves was beaten to death in a movie theater over a text message dispute, we'll all respond saying he should have been carrying a gun. You can't win with this crowd.

A quick internet search shows pages and pages of elderly people beaten to death by young people. Surely this could made the geriatric crowd on edge.

 

[Frank Ettin]

... Whatever was said between the two, we know there was ZERO justification for Oulsen to get out of his seat, and twice assault Reeves. We SEE two separate attacks, both are unlawful assaults against the 71 year old Reeves by someone nearly 1/2 his age and on average significantly more physically capable. It's legally irrelevant that he was struck with "just a cell phone" or that it was "just popcorn." ...

A very pretty closing argument, but the standard in Florida for the use of lethal force in self defense is still a reasonable belief 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 jury is going to take some convincing that Reeves could have reasonably believed that Oulson was going to kill him. "Forcible felony" looks to be off the table too. Under Florida law it's (776.08):

...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.

 

[leadcounsel]

I fully recognize that this isn't a 'bar exam' question. This is a tongue in cheek position. But my cell phone weighs the same as a rock and although not as dense or deadly, police have repeatedly shot and killed individuals throwing rocks at them. It's probably a stretch, but it would at least be plausible to argue that the thrown phone that struck Reeves IN THE DARK THEATER could satisfy the definition of a felonious aggravated assault.

It's a low threshold generally, and items like thrown plates and swung purses are sometimes considered aggravating weapons.

Yes, I fully recognize this is an absolute stretch. But it's not impossible to believe that a thrown object the size and shape of a phone in a dark room may rise to aggravated assault under the tense circumstances. I'd also venture that such an assault is quite possibly or likely an inherent felony.

784.021 Aggravated assault.—
(1) An “aggravated assault” is an assault:
(a) With a deadly weapon without intent to kill; or
(b) With an intent to commit a felony.
(2) Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

 

[Frank Ettin]

...This is a tongue in cheek position.....

Indeed it is. And why do you think it's helpful to explore the very outer limits of the possible?

One of our goals is to help ordinary people who lawfully own can carry guns for self defense understand how to be reasonable and responsible -- and survive both the encounter and the aftermath.

And your encouraging folks to push the limits of justification is, in my view, highly irresponsible.

 

[peggysue]

This is a family forum.

 

[JimPage]

peggysue: "This is a family forum. "

Your point is???

 

[Glenn E. Meyer]

If you don't want your family to visit you in jail, defuse a potential physical fight.

Is that it?

 

[Koda94]

I agree about diffusing the confrontation and I agree about helping others here learn to make the correct choices.

but clearly the cop did try to deescalate the situation by reporting the rude cell phone user to management for them to deal with it.... they didnt.


and like I said before, nobody here is holding the popcorn thrower to the same expectation as the cop. The cop should have apologised, offered to buy the guy coffee, and ran away leaving his wife.... but the popcorn thrower can continue to be a bully, harass, and twice assault a seinior citizen because he is too important to step outside the theater to send a text message.


I think some excellent points have been made about what the cop could have done different, but I find it interesting (and slightly dissapointing) that a pro gun, pro self defense forum is mostly siding with the notoriously anti gun anti self defense media.

 

[kilimanjaro]

I'm willing to wait for the evidence to come out in court. The media thrust that the movie patron was shot for throwning popcorn at another patron is demonstrably false, there were two separate assaults, as can be seen. So I'll wait to see what comes out in court.

From what I'm seeing here, I doubt if several commenters would get to serve on a jury in a self-defense case.

 

[Skans]

interesting (and slightly dissapointing) that a pro gun, pro self defense forum is mostly siding with the notoriously anti gun anti self defense media.

No one is siding with the anti-gun folks. From what I've read, all of us are simply calling it the way we see it. I asked this before, got no answer and will ask it again - would anyone here have shot someone in a theater for throwing a cell phone and grabbing (or throwing) popcorn?

I really believe (but admittedly cannot prove) that the 70+ year old man shot the guy out of anger. How can you not see that this is a very real possibility? Let's not assume that because someone is 70, that they are weak, meek, scared, crippled, or incapable of being a stupid hothead. There are 70+ year olds that are very strong and capable.

From what I'm seeing here, I doubt if several commenters would get to serve on a jury in a self-defense case.

We are discussing a self-defense / use of lethal force scenario here. No one is serving on a jury. No one is held to the standard of "proof beyond a reasonable doubt" here. We are evaluating a shooting, and deciding for ourselves whether there is any validity to the shooter's claim of self-defense, AND how we might have reacted in a similar situation.

 

[Koda94]

No one is siding with the anti-gun folks. From what I've read, all of us are simply calling it the way we see it. I asked this before, got no answer and will ask it again - would anyone here have shot someone in a theater for throwing a cell phone and grabbing (or throwing) popcorn?

I understand the different point of views but what I dont is how everyone still calls this a case of shooting someone for throwing popcorn.
this is no longer the truth, this is a case of a person who lost his temper and assaulted another person.

 

[Skans]

this is a case of a person who lost his temper and assaulted another person.

Ok, I don't disagree with that - but it appears (to me) that both people lost their temper. One didn't get hurt at all; the other is dead. Also, there are varying degrees of assault. I don't really like the legal word "assault" to describe what took place - discussing it in terms of a thrown cell phone and popcorn seems more accurate and realistic. If someone threw a punch or smacked someone with a purse - we could add those details as well. We aren't charging anyone with a crime here - using legal jargon doesn't seem to make much sense in terms of the discussion.

 

[zincwarrior]

The shooter was over 70 years old. The aggressor was 43. I'

I's say what evidence we have shows this is the opposite. The "aggressor" was a 70 year old former cop who harassed a father texting his daughter's sitter BEFORE the movie started, and then proceeded to kill him after they had words and an exchange of popcorn.

The former police officer (who should know better which is why I am restating this) should have defused the situation or called the police.

Killing a man for throwing popcorn at you is about as "murdery" as it gets. Kids throw popcorn at each other all the time.

EDIT: no jury in its right mind is going to accept "the popcorn defense," the moment the prosecutor ask them if they ever threw popcorn at someone as a child.

 

[Koda94]

Skans, thats a good reply, a first to an answer to my questions here.... perhaps you or one of the lawyers here can give a quick note on the varying degrees of assault.

because here is the facts... this isnt simply about throwing popcorn (as the media implies) the guy assaulted the cop to steal his poocorn first so he could throw it in his face... continuing the attack. At some point a cell phone was thrown at the cop..... (although Im not clear on when that occured in the timeline of events which can make a huge difference).

the fight is on, he may have stepped back but hes still facing the cop and we know his wife is holding him back..... I can see why the cop was scared.


if all that happened was the guy threw HIS OWN popcorn, I would agree that would be a pretty weak case to claim assault. Another way to look at this is what if the guy grabbed the cops wallet from his hands then threw is back in his face, or a hat, or glasses..... I wonder what the witnesses would have reported to the media reporter if that was the case would they have said "that guy threw his (own) wallet at him so he shot him".... I doubt it.

 

[zincwarrior]

Well, equally ridiculous is the notion that I must go around the world in fear and yielding to every bully that wants my lunch money or wants to humiliate me in front of my wife by kicking sand in my face.

Having a CHL means you give up the right to pushy shovies. Everything is at the level of YOU COULD GO TO JAIL FOREVER. If you can't accept that responsibility, it is better if you don't carry.