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.