Does Florida Let You Bring a Gun to a Popcorn Fight?

The New
York Times
reports that a fatal shooting at a movie theater near Tampa
last week “instantly sparked a national debate about legal firearms
in public spaces.” If so, it has not been a very well-informed
debate. Curtis J. Reeves Jr., the 71-year-old who shot 43-year-old
Chad W. Oulson during an argument about the latter’s texting during
the previews, is a retired police captain, meaning he
would have been allowed to carry a gun even before Florida
liberalized its rules in 1987. In fact, former cops are allowed to
carry guns even in states like New York, which
has a discretionary permit policy under which it is difficult for
ordinary citizens to obtain such permission. So the fact that
Reeves was legally permitted to carry a concealed weapon (although
he did violate the theater’s ban on weapons) was not due to
Florida’s relative lenience in this area.

But surely there is something about Florida that
can be blamed for Oulson’s death. What about that awful “stand your ground”
law? New York Times reporter Frances Robles raises
the possibility but (to her credit) explains why the 2005 statute
is unlikely to help Reeves:

Mr. Escobar [Reeves’ lawyer] has said that because of his age,
Florida law supports Mr. Reeves’ self-defense claim. In Florida, a
misdemeanor assault against anyone 65 or older is a felony. And in
Florida, a person who has a reasonable fear of great bodily injury
or death is not obligated to retreat.

“He’s throwing spaghetti against the wall to see which noodle
sticks,” said TJ Grimaldi, a lawyer representing Mr. Oulson’s
widow, Nicole.

Mr. Escobar suggested that he is likely to seek immunity under
the hotly debated Stand Your Ground law, which became a household
term in 2012 when the police in Sanford, another Central Florida
city, cited it as the reason a neighborhood watch volunteer, George
Zimmerman, was able to go home after killing an unarmed teenager,
Trayvon Martin, who he said attacked him.

But even Mr. Zimmerman’s defense lawyer said that given what is
known so far, it would be difficult to come up with a Stand Your
Ground defense in these circumstances.

“A felony in and of itself does not justify deadly force,” said
Mark O’Mara, who successfully defended Mr. Zimmerman at his trial
this summer. “I would call that a Hail Mary pass.”

The use of deadly force is justified only if the fear of bodily
harm is reasonable and if the felony is dangerous, regardless of
the shooter’s age, Mr. O’Mara said.

A judge agreed and held Mr. Reeves without bond. 

Since Oulson’s assault on Reeves apparently consisted of
throwing popcorn at him, it will be hard for Reeves to
argue that he reasonably feared serious injury or death.

Although the editorial board of The New York
Times claims
otherwise, the “reasonable belief” standard is neither new nor
unusual. In New York, for instance, the use of deadly force
is permitted if
“the actor reasonably believes that [the] other person is using or
about to use deadly physical force.” Even on the question of
whether a person attacked in a public place has a duty to retreat,
the difference between New York’s law and Florida’s is not as big
as as the editors of the Times like to imagine. In
New York the victim of a public assault is expected to
retreat rather than use lethal force only if he “knows” he can do
so “with complete personal safety” for himself and others.
Furthermore, there is no duty to retreat at all if the victim
“reasonably believes that [the] other person is committing or
attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery.”

In short, the fact that Reeves was armed had nothing to do with
special features of Florida law, and neither do his prospects of
mounting a successful defense. Responding to a hail of popcorn with
a gunshot is no more reasonable in Florida than it is in New
York.