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    FL Appellate Court Grants Self Defense Immunity To Black Defender

    FL Appellate Court Grants Self Defense Immunity To Black Defender

    The evening of February 27, 2008, in the Miami area, Gabriel Mobley and a friend were viciously attacked by two men. Using his licensed concealed carry pistol, Mr. Mobley successfully fought off the attack, killing both of the aggressors. He was charged with two counts of second degree murder – murder which, under Florida law, requires “malice”.

    Mobley exercised his rights under Florida’s self-defense immunity state, 776.032 Immunity from criminal prosecution and civil action for justifiable use of force, to avoid going to trial on the basis that it was more likely than not, based on the evidence, that he acted in lawful self-defense.

    The trial judge, Thomas Rebull, refused to dismiss the charges. He claimed that Mobley’s testimony was not credible, and that Mobley’s deadly force was “neither reasonable or necessary.” Mobley appealed.

    On Thursday, the Florida appellate court hearing the matter ruled by 2-1 that the evidence supported Mobley’s request for self-defense immunity. (The State prosecutors say they intend to appeal that ruling.)

    The appellate ruling published Thursday in support of Mobley recounted the facts of the case as follows:

    Mobley was invited by Chico to join him and his staff at a local Chili’s to unwind. Mobley agreed to join them but drove his own car intending to go home from the restaurant. When Mobley arrived at the restaurant, he removed the handgun that he was carrying and stowed the gun in the glove compartment of his car. He did so because he believed from the training that he had received to secure a concealed carry license that firearms could not be brought into any establishment where food and alcohol are served. By the time Mobley got to the restaurant, a number of Chico’s female employees had arrived and were sitting at a booth located near one end of the restaurant’s bar.

    [T]hings changed after Mobley and Chico went outside a second time for a smoke. This time when they reentered the restaurant, they found two men, later identified as Jason Gonzalez and Rolando (Roly) Carranza, talking to Chico’s female employees. According to Chico, the women seemed to be uncomfortable so he told the men to leave. This sparked a verbal altercation between Chico and the two men which continued until the two men returned to their table at the other end of the bar. The altercation, which lasted only a few minutes, was loud enough to attract the attention of the restaurant’s security guard and its manager, who asked the guard to keep an eye on Jason and Roly.

    Mobley was not involved in the argument but acted as peacemaker instead, going to Jason’s and Roly’s table to ask them to forget what he described as a petty misunderstanding. He even shook Jason’s hand and gave him a friendly pat on the

    Although the altercation appeared to have ended, Mobley testified that he began to feel uncomfortable after he noticed Roly staring in the direction of Chico’s party with a “mean, cold [look] on his face.” He decided it was time to leave. But before he left, he and Chico went to the restroom where he expressed his concerns to his friend. As Mobley and Chico were returning from the bathroom, they passed the front of the restaurant where Mobley saw Jason, with Roly nearby, banging aggressively on the restaurant’s window and pointing toward them. When Mobley and Chico reached their seats, Mobley suggested that after Jason and Roly left, they should all go home. Approximately ten to fifteen minutes later, after Jason and Roly appeared to have left, Mobley left the restaurant alone while Chico settled the check.

    The events that transpired next were captured on a security camera recording made outside the restaurant, and, for the most part, are beyond dispute. The recording shows that at 23:52:15, Mobley, wearing only a sleeveless tee shirt, exited the Chili’s front door and went to his vehicle parked only feet away, but mostly outside the security camera’s viewing range. There, Mobley, as subsequent footage confirms, donned a sweat shirt, because, according to Mobley, it was chilly that night. He also retrieved his gun and put it in a holster that he wore around his waist. Less than a minute after Mobley left the restaurant, Chico and the third man in their party exited the front door. Chico was joined by Mobley who walked with Chico to his nearby car. There the two remained for approximately thirty seconds until, at 23:53:38, Mobley stepped onto the sidewalk near the front fender of Chico’s car. Approximately twenty seconds later, Chico joined him on the sidewalk where the two smoked a cigarette.

    Four seconds after Chico joined Mobley on the sidewalk, Jason Gonzalez can be seen rapidly approaching from Mobley’s and Chico’s right. Four seconds after that, Jason delivered a vicious punch to Chico’s face which fractured Chico’s eye socket. Jason then can be seen to dance backward, hands raised in a fighter’s pose, and within four seconds of landing the punch on Chico advance forward toward Mobley. Mobley reacted by raising his arm and hand to ward Jason off.

    Two seconds later, as Jason steps back from Mobley, Roly can be seen rushing up from the rear of the restaurant to join Jason in what Mobley testified he believed to be a renewed attack on both himself and Chico. At this juncture, as Roly neared Jason, who was only feet from both Mobley and Chico, Mobley testified that he saw Roly reach under his long, baggy shirt. Believing that Roly was reaching for a weapon to use in an attack, Mobley drew his gun and shot at Roly hitting both Roly and Jason.

    This entire series of events, from the time Jason first comes into view on the sidewalk until the first shot was fired, took only twelve seconds. After being shot, Jason turned and fled toward his (or Roly’s) car to collapse with a gunshot wound to the chest and die. Roly, hit four times, fell to the ground near the restaurant’s door where he was assisted by the third man in their party who had been sitting at the bar. Roly later died at a local hospital. Although no weapons were found on Roly’s body, two knives were found on the ground near where he fell.

    Some facets of these facts are worth emphasizing.

    • Most relevant for the purposes of the self-defense immunity ruling, is that it was the “victims,” Roly and Jason, who initiated the physical confrontation, and as such were the aggressors.
    • It seems that Florida’s Stand-Your-Ground law has little application in this case, despite the idiotic insistence of journalists to emphasize the phrase at every turn. The entire fight took a mere 12 seconds, with only 4 seconds passing between Jason appearing on the security footage and his striking of a blow that broke the eye-socket of his victim, Chico – indisputably grave bodily harm. The opportunities for safe retreat from two attackers intent on committing a vicious aggravated assault seem few.
    • Least relevant from a self-defense immunity perspective but of interest from a tactical perspective, is that once Mobley made the decision to engage in lawful self-defense, he used as much force as necessary to secure safety for himself and his friends also under attack. Jason was mortally wounded with the first shot. Roly was struck four times, apparently dispossessing himself of his two weapons – knives – moments before he lost consciousness. From the moment Mobley engaged in self-defense, no innocent party was further injured. That’s good self-defense gun work, by anybody’s standard.

    Also noteworthy are the many ways in which Mobley was able to reinforce his compelling narrative of innocence, by managing to introduce considerable “consciousness of innocence” evidence into the narrative.

    • He did not carry his lawfully licensed firearm into the Chili’s, because alcohol was served there, and Florida (purportedly) prohibits CCW in establishments that serve alcohol. He armed himself only after having left the establishment.
    • He did not initiate, continue, or escalate the conflict – indeed, he played the role of a peacemaker.
    • He had a sufficiently clean background that he was able to personally testify in support of his claim of self-defense without fear of being devastated on cross examination. In contrast, George Zimmerman elected not to testify at trial

    In short, Mobley was able to present a sufficiently compelling narrative of innocence that a majority of the appellate court felt compelled to grant his request for self-defense immunity.

    Finally, as it happens, Mobley is black.

    Gabriel Mobley, granted self-defense immunity by Florida appellate court

    In contrast, his attackers were hispanic (white-hispanic?).

    Jason Jesus Gonzalez, killed in lawful self-defense by Gabriel Mobley

    Jason Jesus Gonzalez, killed in lawful self-defense by Gabriel Mobley

    This would seem to eliminate the opportunity for for-profit racial activism that so marked the Zimmerman case. (Unless those activists can successfully argue that Mobley is “white-black”, I suppose.)

    For those of you interested in reading the entire appellate court decision, here you go:

    Have a great weekend!

    –Andrew, @LawSelfDefense

    (Featured image credit: NBCMiami.com video)


    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.

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    Comments



     
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    Jazzizhep | January 4, 2014 at 2:44 pm

    Mobley should thank Zimmerman with all his heart. It is conceivable that had the GZ affair not exploded into the media frenzy it became, Mobley would be waiting for his trial to begin. Can you imagine the publicity if the trial had ended in a conviction. I am not saying it influenced the judges, but it sure didn’t hurt.

    Did it really take this long to get an appellate court ruling on a pretrial motion in a 2nd degree murder charge?


     
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    Exiliado | January 4, 2014 at 3:07 pm

    Reading through the legal verbiage I could not help to notice this sentence:

    Mobley should have brandished his gun, fired a warning shot or told the attackers to stop because he had a gun.

    I am not a lawyer, but it was my belief that you are not supposed to fire warning shots. When you draw and fire is because your believe that your life is in imminent danger.

    Am I crazy or that judge crossed the line? Was he trying to undermine every and all claims of self defense?

    I would love to hear from the experts.


       
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      Ragspierre in reply to Exiliado. | January 4, 2014 at 3:25 pm

      I am NOT a self-defense expert. An “interested observer”, yes.

      I am an attorney, though not one who practices criminal law.

      Sometimes, being an attorney and an “expert” on any damn thing are mutually exclusive, and I’m realistic enough to step up to that.

      Andrew IS both an attorney and a self-defense law expert, and I think we would all find his exposition here interesting.

      If I’ve read his stuff faithfully, you NEVER draw a firearm to “brandish” it. Often, that is enough, of course. But if you draw it, you should have the right (and know you do) to use it to engage a target and stop an aggressor.

      Also, if I’ve read Andrew faithfully, I think his advice would have been to leave the Chili’s after the first “altercation” and go home to momma and the soon-to-be baby.

      (Not my first inclination, being somewhat less prudent.)

      The appellate judge was WAY off base there. That was dicta that had no place in the dissent.

        Rags has correctly anticipated what my advice would have been.:-)

        In terms of “brandishing”, or display of the weapon, the same rules apply to that as to the use of force in self-defense generally–would a reasonable person, in the same or similar circumstances, have believed that the display of the weapon was necessary to prevent an imminent threat.

        In some states, the level of threat necessary to justify display of a deadly force weapon MUST be deadly-force. My home state of Massachusetts is one such example where the DISPLAY of lethal force is treated exactly the same as the USE of lethal force.

        In the majority of states, the mere display of lethal force does NOT constitute a “use” of lethal force, so in theory the level of threat being faced may be less then a deadly-force threat–but that’s not a path I would advise, as it puts you at great risk of being deemed the person who escalated a non-deadly confrontation to a deadly-force confrontation. And if THAT happens, then YOU are the aggressor in the deadly-force fight, and not eligible to justify your use of deadly force as self-defense. Scary territory.

        Personally, I would not display a weapon unless I believed that the threat against me/mine had reached a deadly-force level. And if I displayed that weapon under those circumstances it would likely start making loud noises rather quickly. Naturally, if the bad guy de-escalates, it’s all good, he can walk away. But based on empirical testing he’s going to have a time window of about 1 second to make that decision to de-escalate his threat level back below imminent deadly force.

        Finally, yes, at the first sign of trouble I would have vacated the premises and gone somewhere else, ANYWHERE else. I’ve yet to have an experience at any Chili’s that was so outstanding it was worth a gun fight. (FYI, I strongly recommend Gavin de Becker’s, “The Gift of Fear”.)

        –Andrew, @LawSelfDefense

        Oh, and of course the dissenting appellate judge’s comments about “warning shots” and other such nonsense is exactly that–nonsense.

        –Andrew, @LawSelfDefense


         
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        genes in reply to Ragspierre. | January 4, 2014 at 5:08 pm

        Don’t know about Florida, but in both SC and GA “Brandishing” a firearm is a crime.
        Exactly where is someone outside a popular restaurant supposed to aim while firing a “warning shot”, which IIRCC is also illegal in some states?
        Fire in the air it comes down and may injure or kill an innocent. Fire down and the ricochet from the paved parking lot or street could do the same.

    OK, so Gov. Scott appointed Rebull in 2011 – time for that boy to leave, and the people of Florida should be jerking Scott around using the “What were you thinking of?” approach in view of this man’s ruling.

    And then we have “(The State prosecutors say they intend to appeal that ruling.)”
    The prosecutor’s name is Katherine Fernandez Rundle (The only one I could find for the 11th Circuit). It would be interesting to ask this lady what her rationale is in harassing Mr. Mobley, since the judges ruling has been overturned.

    If she reads this, she can post here.

    Odds are, her politics are Democratic.

    Think I’m safe typing this. I’m with Gabriel Mobley!


     
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    Henry Hawkins | January 4, 2014 at 7:04 pm

    RE: “White Hispanic”

    When one of my clients has successfully completed a court ordered substance abuse treatment program, I notify the state government system electronically via a computer interface that comes with my licensing (state of NC). They ask for lots of demographic info. They have a two-tier way of identifying race, Race and Ethnicity. We have to choose from both groups for each client. Choices:

    Race

    __ American Indian or Alaskan Native
    __ Asian
    __ Black or African American
    __ Native Hawaiian or other Pacific Islander
    __ White
    __ Unreported

    Choices for Ethnicity are:

    __ Hispanic Puerto Rican
    __ Hispanic Mexican American
    __ Hispanic Cuban
    __ Hispanic Other
    __ Unreported
    __ Not Hispanic or Latino

    I have no idea how this set up was arrived at, though I’d strongly suspect a federal influence, or mandate even. It seems targeted very specifically to the ID of Hispanics.

    If journalists determined George Zimmerman’s race/ethnicity from a Florida DMV or LE form and it used a system similar to this, he would have been listed as White, then Hispanic whatever (Cuban, Mexican, etc.), hence “White Hispanic”.


       
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      Sally MJ in reply to Henry Hawkins. | January 6, 2014 at 7:43 pm

      Well, apparently they don’t have this many choices in Florida. Remember when GZ made the non-emergency call to the dispatcher who asked him, “Is he [TM} black, white, or Hispanic?”

      And if you look at the state of Florida’s records on Stand Your Ground cases, the database allows only three choices of race: Black, White, and Hispanic.

      Maybe they are a bit behind.


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