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The “Popcorn Defense”

The media has been going nuts over the Florida “Popcorn Shooter”. It’s obviously not the perfect narrative for them, because the shooter was a retired cop, and is in the class of “people who should have access to guns,” to pretty much everyone except the looniest anti-gun activists. Here’s a Christian Science Monitor article about the whole thing.

I think it’s hard to argue that a retired cop shouldn’t be carrying a gun everywhere, all the times, especially when they are in or near the area they used to patrol. But if we’re going to start one of those “national conversations” maybe it’s time to start one on police culture, and how we can identify cops who have anger issues, and encourage them to take a different career path. Also, maybe we need to have a conversation about things like this, from the CSM article:

Some have suggested that Reeves, 71, may have felt legitimately threatened and bullied by the younger Mr. Oulson, and that the thrown popcorn could qualify as an assault on an elderly person, a felony worthy of self-defense in Florida. That tack toward a possible “stand your ground” defense has already been dubbed the “popcorn defense.”

If assault on an elderly person is, in fact, a felony, regardless of stand-your-ground, it’s always been law in Florida (and many other states) that you can use deadly force to stop the commission of a forcible felony, and my understanding is that felony assault would qualify. Perhaps someone more knowledgeable on Florida law could comment. If there is a “popcorn defense,” that strikes me as an awful mistake in the part of the legislature, and should be corrected. Florida seems to be full of nonsensical criminal law. Legislatures seem to instinctively gravitate towards “getting tough on crime” through passing penalty enhancements that have little overall deterrent value. But did they unthinkingly create a ridiculous justifiable homicide situation by making a ridiculous felony? Wouldn’t surprise me if that is indeed the case.

80 Responses to “The “Popcorn Defense””

  1. aerodawg says:

    May not be the most popular opinion but retired cops are just that, retired. They’re civilians and shouldn’t have any special treatment. Should be subject to the same laws and regulations as the rest of us.

    • Kirk Parker says:

      Absolutely correct.

    • janklow says:

      yeah, i was going to say, i think i understand the sentiment in the post, but it should actually be really easy to argue a retired cop shouldn’t be carrying a gun everywhere, all the time.

    • Ed says:

      Cops are men and women who wear costumes and badges to work. Can someone point out the wording in the Constitution that grants extra rights to theses people with the magical costumes and badges?

      Now take the cops and their magical costumes and badges and lets now add in the military and their magical costumes of camouflage, etc. It is amazing how most gun laws do not apply to the magical costume wearers. The one that really comes to mind is the NFA 1934. So you put your magical costume on and you can have a machine gun, SBR, SBS, etc while wearing the magical costume.

      I am sorry but I can not find any reference in the Constitution that gives extra rights to people because of their chosen occupation. It should be noted the there is one occupation in the Constitution that did have less rights, they are called slaves. Until we the people restore the same rights for ourselves, that the government has given to it costume wearing enforcers, we are all just slaves on the government’s tax plantation.

    • Sebastian says:

      It was not my intention to comment on whether retire LEOs should have special privileges that ordinary citizens don’t. Just that it’s a good idea for individual cops to carry at all times. I don’t believe police should be treated differently, or retired police.

      • Mark E says:

        ” Just that it’s a good idea for individual cops to carry at all times. I don’t believe police should be treated differently, or retired police.”

        In many locations cops are treated differently in that they are allowed to carry

  2. Zed says:

    Short of MPs, all cops are civilians.

  3. Patrick H says:

    How the hell could thrown popcorn being considered assault? No reasonable person would consider that assault.

    I do not see how he will be able to argue normal self defense.

    • Sebastian says:

      Assault is technically any unwanted contact. In most jurisdictions, it would be misdemeanor assault.

    • CarlosT says:

      It depends.

      Florida statute 784.011 Assault.—
      (1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

      If the popcorn were thrown in a particularly violent and threatening manner, it could be this version of assault. However, this version of assault is a misdemeanor and I think you’d have to have more than popcorn throwing to establish fear of serious bodily injury or death.

      • CarlosT says:

        Sorry that second paragraph isn’t in the Florida law. I think I improperly closed the blockquote.

    • Defens says:

      If the popcorn was heavily buttered and/or salted, it could be considered an assault upon his health. If no butter and light on the (a)salt, not so much.

  4. brewerbob says:

    The retired cop already had a complaint against him for his reaction to another texting incident, correct? And how anyone can think that a bag of popcorn is a life threatening object is beyond me.

    • Jack says:

      That alone should be enough for a lawyer to make the argument for a “pattern of behavior”.

      Also the media is sure loving to push Stand Your Ground onto this.

      Then again in a defensive stabbing case a few years back, the media was also screaming about SYG… despite the guy having retreated.

      • Archer says:

        The media has a vendetta against SYG – they have since before Zimmerman/Trayvon; that case just brought it to immediate attention – but once again it’s likely not an issue.

        Ever try to “escape safely” from a movie theater? How much trampling, stomping on toes, and dealing with tripping hazards is a reasonable person expected to endure to retreat? And the retired cop’s wife was there with him, so even given an aisle seat, no reasonable person is going to expect him to run away and leave his wife behind. (In fact, to respond to McThag’s comment at 1:04 pm below, returning to protect his innocent wife from a potential danger would be allowable, if and only if it is legitimate defense.)

        So if “safe retreat” is not possible, SYG is not an issue, and it becomes a standard self-defense case.

        What I don’t understand is, if the media has on-call legal advice (if nothing else, in the form of corporate legal counsel), why they aren’t even slightly educated on the realities of what SYG is and is not.

  5. McThag says:

    I think his claim to any protection under self defense is voided by his getting up to complain and then returning to the same seat.

    While I can stand my ground, I can’t return once I retreated successfully.

    • Diane says:

      In one of the newspapers I read, the Sheriff is quoted as saying the theater was nearly empty. He had no problems leaving to get the manager and he could have moved to another seat. That’s one of the reasons they didn’t buy the SYG claim.

    • Sebastian says:

      That depends on whether there was a confrontation at the time he complained. If he just got up to complain, and them went back to his seat, and the confrontation began. The other variable is whether anything else happened that put him in reasonable fear of great bodily injury or harm. Popcorn wouldn’t qualify, but other facts could support it.

  6. Ken says:

    Why do you all assume that throwing popcorn was the only thing Oulson did? I’m guessing that he wasn’t throwing it spitwad style. More likely he threw an entire bucket of popcorn at his victim while advancing on him threateningly. I refuse to pretend to be upset because some evil bully got what he deserved.

    • Patrick H says:

      Because we have these things called witnesses. Advancing on somebody after throwing popcorn still does not rise to allow self defense.

      And from those witnesses, it sounds like the shooter was the bully.

  7. HappyWarrior6 says:

    Seriously… How many would seriously advocate drawing and firing on someone for throwing popcorn? Even a bucket of popcorn? That’s a simple assault charge, probably a misdemeanor. Yeah, none of us were in this situation and there is some Monday morning quarterbacking. But seriously.

    Heaven forbid someone comes at you with a deadly weapon, you have to make that call. But a bucket of popcorn? Idle punk threats in a movie theater? At most it would be a complaint to the manager and a seat change.

    • Defens says:

      Throwing popcorn? Never. Aggressively texting in a movie theater? Grounds for immediate termination, obviously.

  8. I am really getting tired of how so many people are ready to line up with the anti gunners and lynch the shooter. At least give him a trial.

    McThag, are you serious? He “returned after retreating?” That’s not even sensible. He is believed to have returned to his seat before the physical confrontation started. In fact, the physical confrontation is said to have occurred because the dead guy objected to the shooter having informed management that the dead guy was disturbing him.

    The ONLY thing that matters is whether or not the shooter was in reasonable fear of death or serious bodily injury. We know that the shooter was 71. We know that the dead guy was in his early 40s and was fairly tall/big. Look at his photo. The dead guy had the ability, the opportunity, and the shooter can argue that he was in jeopardy.

    So what skin is it off our noses if we wait long enough for a court to make the decision? All you people seem to be falling all over yourselves to throw this guy under the bus as if his actions have any bearing whatsoever on you or your rights. We will never win this debate if you all keep preemptively surrendering.

    • Patrick H says:

      I can’t speak for others, but I’m not reading to lynch him. He certainly needs a fair trial. That doesn’t preclude me from speculating on what happened and what should happen.

      And what we are arguing is weather his fear was reasonable. You certainly have a point with him being an elderly man.

    • SinEater says:

      I have no skin in this game.
      I don’t really care how the jury decides.
      But I have a problem with the storyline as published.
      We have a man who left the theater and then came back after complaining to the management about someone else.
      Then an argument ensues and popcorn is thrown at the man.
      70 year old man
      Two people shot with the same bullet.
      Is he a ninja or were there *two* people advancing on him after throwing popcorn at him?
      And I don’t for one minute believe the wife threw her hand in front of the gun to ‘prevent her husband being shot’
      In my mind I see the pair of them advancing on him, he pulled his piece and the wife grabbing for the gun and then he pulled the trigger.
      I am not buying the MSM version at this time.

  9. Diane says:

    Personally, I think the cop is going to successfully use the SYG defense. The way Florida’s SYG law is written, it doesn’t really matter what any of us think. The only thing that matters is what the cop thought. In a SYG hearing, a judge will be the one to decide if he walks or not and, in Florida, many people walk.

    • WRONG. Please stop blindly repeating the lies of the anti-gunners. It does not “only matter what the cop thought.” It matters that what he thought was REASONABLE.

      He can think anything he likes. He can think he is in immediate danger of death or serious bodily injury until the cows come home. If that belief is not REASONABLE, as determined by the judge or jury, he’s going to lose his case.

    • Sebastian says:

      What Sean said. His belief has to be reasonable.

  10. Some guy says:

    FL Crim Defense attorney here.

    If all the guy did was chuck popcorn at him, there’s no way he walks. Speaking of which, if this was inside a movie theater, shouldn’t there be security camera footage showing what happens?

    In Florida, the felonious nature of simple assault and simple battery against the elderly is an enhancement that occurs after the person is charged. At the time it happens, simple assault and simple battery remain misdemeanors. A man chucking popcorn (and hitting) has committed simple battery. If he misses he commits simple assault. And you’re not allowed to kill him.

    784.08(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:

    776.013(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

    • “If all the guy did was chuck popcorn at him, there’s no way he walks.”

      True, but is that all that happened? If you place 10 feet between the two and he makes no move to close the distance after throwing the popcorn, then he will never show a reasonable fear of death or serious bodily injury. If they are face to face, and the victim (I can’t think of a neutral term) rose from his seat, shoved the popcorn into the shooter’s face, closing distance, then he has a case for self defense.

      I don’t know why we are bothering to discuss this. There is a justice system and we should consider letting it work.

      • rd says:

        “I don’t know why we are bothering to discuss this.”

        We are discussing this, because if we do not, we cede this story to the anti’s, and their

        “OMG!!! Guns are sooo dangerous. Gun owners are all Kill Crazy Murderers!!!11!!Eleventy” fear, lies and misinformation.

        We do NOT know all the facts, but we know what was reported. And waiting 12, 18, 24 months for a trial allows the anti’s and the MSM to frame the news stories. And the editorials. And the Legislation.

        The best thing is to ask questions, and ask them of the reporters covering the story and the sheriff. Hopefully we will learn more from the witnesses as their stories are published or as the charging documents are published.

        We need to learn from what went wrong. Because someone has already paid in blood for the lesson.

        • No. The proper response is, “He has been arrested and is awaiting trial. Instead of trying to lynch the suspect, maybe we should wait for a trial.”

          Force the anti-gunners to justify their lynch mob behavior. Change the subject from the shooting to the behavior of the lynch mob anti-gunners.

          I’ve always found that joining people doing bad things does nothing to stop them from doing bad things. YMMV

        • HappyWarrior6 says:

          This.

      • Gunstar1 says:

        The reason we are discussing it is because news media wants to tarnish SYG in any way it can. Did you read the CS monitor article?

        They WANT to link SYG with the “popcorn defense” to make people think that SYG is a bad law. No one should be shot for throwing a bag of popcorn so if SYG allows it then SYG is a bad law.

        The points you bring up about there possibly being more than just the popcorn being thrown is NOT what the article says. It says “some have suggested” that he thought he was threatened and bullied and that “the thrown popcorn could qualify as an assault on an elderly person, a felony worthy of self-defense”.

      • Sebastian says:

        My purpose was only to cover one particular claim I saw in the media, that assault, even a simple assault, against an elderly person was a felony. That seemed outrageous, but I could see a legislature do something stupid like that in a zeal to appear to be “tough on crime.” Where the article in question gets it wrong is assuming that has anything to do with SYG. If you’re stopping a forcible felony, there has never been a requirement to retreat.

      • Matthew Carberry says:

        Probably closer to 3 feet and a row of hip high theater seats betwixt if they were one row apart.

    • Sebastian says:

      Thanks for clarifying that for me. That answers the question I had. So there is no “popcorn defense” as the media has been calling it. If all the kid did was throw popcorn, there’s not likely any reasonable self-defense claim. Then the case hinges on what else happened.

  11. Shootin' Buddy says:

    “Florida seems to be full of nonsensical criminal law.”

    I would like to nominate this as Most Profound Statement on the Law as Offered by a Non-Lawyer for 2014.

  12. Gunstar1 says:

    Even Sebastian got it wrong (or at least forgot it). All states that I am aware of that have SYG have a reasonableness standard. The amount of force (or threat of) must be a reasonable relation to the danger imposed. Is being hit with a bag of popcorn going to cause you death or great bodily harm? No it isn’t. So using deadly force is not a valid reaction to someone throwing popcorn at you even if the act of throwing it was considered a forcible felony.

    The legislature could make saying “hello” to someone a forcible felony. That doesn’t mean you can then shoot someone if it looks like they are going to say hello to you. That is why the reasonableness standard is there.

    • Sebastian says:

      The question I had was whether in Florida, even what in Pennsylvania would be a simple assault, if done to an elderly person would be a felony. If it were a forcible felony, SYG or no SYG, under many state laws it’s legal to use deadly force to stop the commission of a forcible felony.

      Actually, a FL defense attorney in the thread answered my question, and no, it doesn’t sound like that applies, since the felony is a sentencing enhancement to a misdemeanor crime.

      • Some guy says:

        Well it’s not really a sentencing enhancement (because it doesn’t kick in during sentencing), but I’d argue that it doesn’t count as a forcible felony for the purposes of self defense because it only gets the bump in offense severity after the defendant is charged.

        It’s not like the statute says “when a person does elements X, Y and Z, they commit a felony of the x degree.” The various degrees of battery and assault upon an elderly person aren’t a series of new crimes. Advanced age is just an element that triggers an enhancement during the judicial process.

      • Gunstar1 says:

        “If it were a forcible felony, SYG or no SYG, under many state laws it’s legal to use deadly force to stop the commission of a forcible felony.”

        This is incorrect. It is legal to use deadly force if the person reasonably believes it is necessary to prevent a forcible felony.

        That makes a huge difference.

        Just because a crime is considered a forcible felony does not automatically mean deadly force is justified.

        If arson is a forcible felony, stopping someone from setting fire to an abandoned building does not authorize deadly force. That is because a person would not think it reasonable to kill someone for burning down an abandoned building, even though the crime the arsonist is committing is a forcible felony.

        • Some guy says:

          Actually this is a pretty good point that I neglected to make.

          It’s hard to believe that anyone could entertain a reasonable belief that blasting someone in the chest is necessary to make them stop throwing popcorn at you.

          I am sure that (this being Florida) the security cam footage will be leaked before long.

  13. GoneWithTheWind says:

    So this guy assaults someone just because the old dude asked him to stop texting in the movie and we think he should just sit there and be assaulted? I’m stumped as to why? If someone assaults you and you are 71 years old but you have a gun why wouldn’t you use the gun to protect yourself?

    • Gunstar1 says:

      Because it is against the law. If I am 71 and hit with a bag of popcorn, the reasonable reaction is to get up and go call the police or inform theater staff that a person hit you with a bag of popcorn.

      The unreasonable reaction is to pull out your gun and shoot someone. Actually I can’t even believe I have to type that.

      It seems a lot of people are not aware of the reasonableness standard.

      • And a lot of people are assuming that what happened is that the victim tossed some popcorn at the guy while otherwise sitting peacefully in his chair. We don’t know that.

        • motomed says:

          seriously, do we have to start every comment with “I wasn’t there, but based on all published reports……” ???

          There is nothing wrong with debating the issues and speculating based on what is known.

          • Let me quote myself

            “Stop being stupid. We don’t know. We don’t know a damn thing about what happened. We have news stories written by people who don’t know the difference between the holding end and the flamey death end of a handgun. These people wouldn’t know the difference between Castle Doctrine and the Monroe Doctrine. They don’t know the difference between Stand Your Ground and Stand and Deliver. Relying on them for good information about self-defense is like expecting a politician to keep his promises.”

            All published reports? Don’t make me laugh.

            • motomed says:

              show me the published report that says otherwise….

              is this your dad or something? getting awfully defensive and I’m not quite sure why? if we only discussed issues we had all the facts on, we’d literally never discuss anything. There is plenty of value in using the scenario, regardless of completeness of facts, to discuss the issues.

              • Sebastian says:

                I think it’s fine to discuss a situation based on the facts at hand, as long as everyone understand that the facts at hand might not be the actual facts, and everyone is innocent until proven guilty beyond a reasonable doubt. There’s a fine line between self-defense and murder, so I do think there’s value in discussing where that line is in real world cases.

              • I explained right up front why I’m angry about this. I’m tired of all the fair weather gun rights people throwing people under the bus before they’ve even had that benefit of a trial.

                Keep in mind, if you carry a gun and shoot someone, this is what’s going to happen to you. Enjoy the view from under the bus while all the interweb lawyers tell all and sundry how you were totally breaking the law and deserve to go to jail.

                I’m not going to contribute to this trend. I’m not going to line up with the gun haters. I’m not stupid enough to believe that preemptively surrendering to the gun haters will make them like me or respect my rights. YMMV

            • Richard says:

              I am with Sean. And it is even worse than just “the media”. The CSM is extremely anti-self-defense and has been for as long as I can remember.

              Do we need to recite all of the incidents where the media got everything wrong. It would be quicker to list the incidents where they got anything right.

        • Gunstar1 says:

          You keep saying that. Frankly that doesn’t even matter.

          The media wants people to believe that is what happened and that SYG covers someone that has popcorn thrown at them, that is why it is being called the “popcorn defense”.

          Is that really what happened in this situation? Knowing the media, the only thing that is probably correct is the people’s names. However, just with Zimmerman, the facts don’t really matter to the media. They want people to think that popcorn is all there is and given only that information, they are wrong to say SYG applies.

    • Sebastian says:

      Seriously, a guy throws popcorn at you and you’re going to blow him away? That’s a quick ticket to jail in just about every state. SYG or not.

  14. motomed says:

    6’1″, 270lbs, and not exactly a cripple, no way the “scared old guy” thing plays at all, especially for a retired cop who in theory should not be easily intimidated. He also managed to hit the guy’s wife….

    If the police could have spun this in a way to protect one of their own, they would have….

    • Sebastian says:

      A 71 would have an easier claim of force disparity, but usually that’s a question for a jury unless it’s an obvious force disparity, like he was in a wheelchair, or used a walker or something.

  15. Kevin A. says:

    As usual, there is a lot of speculation going on here, without enough information to decide who’s right/wrong. I understand that the media is very likely giving this story a lot of air time, because of their own agenda. But that the nature of that beast. If this was cut & dry self defense, we likely wouldn’t have heard about the incident.

    The one thing I’d be interested to know is if the popcorn was thrown toward the face of reeves; and if it was accompanied with a lunge toward Reeves. If the retired cop was reacting to a tactic of distract or blind the victim before attacking (think sand thrown in the eyes), then that leans the case more in favor of Reeves. At the same time, how could reeves have expected he could draw his weapon if Oulson was close at the start of the attack?

  16. Gunnutmegger says:

    Is this a “stand your ground” issue?

    Is this a “enhanced penalties for assaulting old people” issue?

    Is this a “police culture run amok” issue?

    Maybe it involves all 3 factors.

    But considering how many innocent people and pets have been gunned down by the cops, and how police misbehavior routinely gets excused, I would argue that the most important issue is that of police culture.

    Will the investigation & police reports on this issue be slanted in the ex-cop’s favor?

    Will the police lean on the prosecutor to influence who & what get charged?

    If I was a betting man, I know where I would place my bets.

  17. Carl from Chicago says:

    Kind of ironic, but the more stuff like this is hyped, the less interested I become. I wonder if the media whores will ever run out of outrage.

  18. Chris says:

    776.08 Forcible felony.—“Forcible felony” means 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.
    History.—s. 13, ch. 74-383; s. 4, ch. 75-298; s. 289, ch. 79-400; s. 5, ch. 93-212; s. 10, ch. 95-195.

    All it takes is for the deceased to have said “I am going to kick your ass old man” or something similar and that would qualify.

    • Matthew Carberry says:

      That is not what that statute says. The attacker has to commit the underlying assault or battery under their own statutory definitions for them to then become aggravated. Whether or not throwing popcorn meets the underlying definition of -felony- assault or battery is a question of fact for a jury.

      • Chris says:

        Throwing popcorn at someone would qualify as a misdemeanor battery under the statute that defines enhanced penalties for crimes against a person over 65, making it a felony. Since it is a felony using force or violence, it should qualify under the statute I quoted.

        • Some guy says:

          I addressed this above.

          1) It only gets enhanced to a felony after the defendant is charged with the battery. At the time of commission, it’s still just a misdemeanor.

          2) Even if it was a felony, you would still only get to use lethal force if it is reasonably necessary to prevent the commission of the crime.

    • Some guy says:

      All it takes is for the deceased to have said “I am going to kick your ass old man” or something similar and that would qualify.

      No, because a verbal threat isn’t a fucking felony. It’s not even a misdemeanor or a parking ticket worth of crime.

      Even taking a swing at someone isn’t necessarily carte blanche to blast the attacker. We’re still talking about acts that, by themselves are misdemeanors (simple assault/battery).

      The acts of the attacker have to cross over into either
      a) putting the victim into a reasonable fear of death or great bodily harm- for example, if 10 angry guys with baseball bats have surrounded you and are getting ready to beat your ass… but haven’t taken a swing yet
      b) a forcible felony in progress- a man is robbing a bank with his hand in his pocket, saying he has a gun. Do you have to wait for him to pull a gun out and threaten someone? No.

      In many cases, both will be satisfied. Trayvon Martin banging Zimmerman’s head against the ground qualifies as both aggravated battery and an act that would put Zimmerman into a reasonable fear of death or great bodily harm.

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