The "Popcorn Shooter," Stand-Your-Ground, and Duty to Retreat
Hey folks, As I noted in my piece over at Legal Insurrection a couple of days ago, the "popcorn shooter" case down in Florida--in which retired police Captain Curtis Reeves allegedly shot and killed Navy veteran Chad Oulson for, some have claimed, throwing popcorn at Reeves--has resulted in the now routine howling and misinformation bout Stand-Your-Ground laws (see "Florida Theater Shooting Induces Another Round of “Stand Your Ground” Mania").
Charles C.W. Cooke was kind enough to heavily reference that Legal Insurrection post in his own piece over at National Review Online (see "More Stand Your Ground Silliness"). As of this writing, Cooke's post has accumulated over 170 comments. Unfortunately, if not unexpectedly, many of these evidence a poor understanding of the law of self-defense in general, and Stand-Your-Ground in particular. I write now in an effort to bring some clarity to the issue on behalf of those who may have an interest in actually understanding the law.
I have suggested that the facts, as currently known, about the theater shooting suggest overwhelmingly that Stand-Your-Ground can have no role in this case. I'll step through my rationale quickly here.
(1) Stand-Your-Ground can only ever apply if the person using deadly force is acting in lawful self-defense. For Reeves (the defendant) to have been acting in lawful self-defense in his shooting of Oulson (the victim) we are required to stipulate that Reeves was faced with an imminent threat of death or grave bodily harm--that is, he HAD to shoot at that instant and without delay , or he (and his similarly elderly wife, who was accompanying him) could reasonably expect to be killed or gravely wounded in the next moments.
(2) Anyone who has ever been seated in a crowded theater--and I'm assuming the theater was crowded, but the movie being shown was the currently top-selling "Lone Survivor," so a crowded theater can be reasonably expected, absent contrary information--knows how difficult and awkward it is to excuse oneself from the seat to exit the theater. (Reeves, MAY have been in an aisle seat, which would expedite his ability to leave, but in that case his wife would not have been, and he could reasonably be expected to leave her behind to deal with the stipulated imminent threat of death or grave bodily harm.)
(3) Given that the attack against which Reeves was purportedly defending himself was so imminent that it was (he claims) necessary and lawful for him to shoot and kill Oulson, it is not reasonable to expect that stumbling his way across the legs and knees to escape that threat would constitute a totally safe avenue of retreat (especially as he would also have to drag his wife along with him).
(4) If there is no totally safe avenue of retreat, there can be no legal duty to retreat (unless Reeves was the deadly force aggressor, in which case the whole matter of SYG is moot because his actions were not lawful self-defense).
(5) Because there was no legal duty to retreat, Stand-Your-Ground is a moot issue, because that's what SYG does--relieve a defender of an otherwise existing duty to retreat before using deadly force in self-defense. No duty, no SYG.
That, I thought, would end that.
Some of the commenters responded that this could still be a Stand-Your-Ground case . . . because Reeves could have left the theater much earlier in the conflict--for example, when he left to seek out a manager he could have stayed "left'; alternatively, he could have found another seat in the theater, and so forth. Given, the thinking goes, that he had those earlier "safe avenues of retreat," and failed to take them, he may raise "Stand-Your-Ground" as legal justification for not having done so.
This is a case of a little bit of knowledge being a dangerous thing. So, let's build up the knowledge base a bit.
The misunderstanding in the above comment involves when a "duty to retreat" is first established. If such a duty is established upon the most preliminary interaction of two parties who would, unexpectedly, end up in a deadly fight, the comment above would be correct. But that is NOT when a duty to retreat is established. Otherwise we would have to retreat anytime we innocently bumped into somebody--after all, that bump could be the start of a fight for your life.
No, a duty to retreat does not arise until the defender has reached a point where he should reasonably recognize that he's going to have to either (1) use deadly force in self-defense, on the one hand, or (2) take advantage of a safe avenue of retreat, on the other hand. It is only at that point that the duty to retreat arises, and only then that the failure to safely retreat can constitute a breach of that duty and the loss of the right to justify the use of defensive force as self-defense (or, in a SYG state, to fall upon the SYG statute to escape from under the duty to retreat).
In the instant case, a duty to retreat would have arisen only when Reeves realized he had to either (1) use deadly defensive force in the face of an imminent deadly force attack or (2) retreat safely from the danger of the attack. This would be the point where he describes himself being struck in the face, after which he immediately shot and killed Oulson. If at that point he failed to take advantage of a safe avenue of retreat he would need to fall upon SYG to justify that failure, and then this would be a genuine SYG case.
But, of course, as already discussed there WAS no safe avenue of retreat at that point in time, the only point in time that matters. And without a safe avenue of retreat available there is no duty to retreat, and without a duty to retreat, there is no need for SYG to relieve you of that duty.
And that is that.
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition," available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.
In addition to the book, Andrew also conducts Law of Self Defense Seminars all around the country. Seminars for 2014 are currently being scheduled, if you'd like to see one held in your area fill out the comment box on the LOSD Seminar review page, where you can also see reviews of recently completed seminars in New Hampshire, Maine, Texas, Massachusetts, Ohio, Virginia, Florida, South Carolina, Georgia, and elsewhere.
Andrew is also a contributing author on self defense law topics to Combat Handguns, Ammoland.com, Legal Insurrection, and others.