Most Read
    Image 01 Image 02 Image 03

    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.

    DONATE

    Donations tax deductible
    to the full extent allowed by law.

    Comments


    Something is very wrong with Florida.

    “Jason delivered a vicious punch to Chico’s face which fractured Chico’s eye socket.”

    “Although no weapons were found on Roly’s body, two knives were found on the ground near where he fell.”

    I mean really how much more self defense does this get. Why subject this man to a trial, when he will have a whole lot of emotional trials himself.


       
       1 
       
       4
      JackRussellTerrierist in reply to Shane. | January 4, 2014 at 1:28 pm

      Why subject ANYBODY to a trial under these circumstances or the Zimmerman case circumstances? Politics, that’s why. I wonder to what extent the appellate court considered the races and roles of the involved and gave Mobley the benefit of their decision because of his race. I think the evidence of self-defense to avoid trial was more compelling in the Zimmerman case than this case, but in this case the evidence of self-defense nevertheless seems sufficient.

      It looks to me like Mobley is a level-headed guy who defended himself and his friend and should certainly not be prosecuted for protecting his own life and that of his friend by ridding the world of a couple of vicious pukes.

      I think the appellate judge who suggested Mobley and Chico should have “skittered” (skittled? 🙂 ) off to avoid conflict missed the part about the bad guys appearing to have left the area and came sneaking back from behind the building. They were lying in wait for Mobley and Chico and one had knives that he was going for. As their life essence abandoned their bodies, I guess it came to them that such an act was a real bad idea. Let it be a lesson to all these scum who commit unprovoked attacks on people going about their business. Nobody should have to “retreat” or leave an area out of fear of scumbags. Mobley was appropriately armed and therefore did not have to “skitter” away or cower in fear of scum. Good for him. Mr. Mobley deserves an award for ridding the citizenry of a couple of brainless, lowlife punks. The citizenry will be spared the expense of having to clothe, feed, nurse and adjudicate these pukes for the crime they committed that night and their guaranteed future crimes.

      God bless the Mobleys of this world. May they keep their powder dry and their aim true.


     
     0 
     
     4
    ElStegosaur | January 4, 2014 at 11:28 am

    Mildly off topic, but in regards to race classification, there was an insightful comment here: http://www.breitbart.com/Big-Journalism/2013/12/31/top-10-media-hate-crime-hoaxes-of-2013

    ” Afrikanerhart
    • 2 days ago

    I’m a 24 years criminal justice professional. I work with NCIC criminal background files every day. Here is my take as to how the “Zimmerman is White” thing got started.
    For whatever reason the Feds at NCC classify most hispanics as “White” in their records. (why they do that is another topic of debate…I don’t care for it as it has the potential to cause police to overlook a fugitive) Many states, including my own, follow the same practice. When the Martin/Zimmerman shooting story broke in the national media, they applied for a copy of Zimmerman’s criminal history and saw that is said “White”. With that and his Germanic last name, they jumped to the incorrrect conclusion that he was White and ran with the racial angle.
    By the time they figured out their mistake, it was too late…..not that they cared, mind you. In any event, their pushing Zimmerman as a White played right in with their “there are *cue scary music here* eeevvviiilll White racists hiding under every rock” myth. the rest is history as they say.
    Had Zimmerman’s name been Jorge Zamora, this would have never been more than a local news story. ”

    It makes sense.

    Also, hope Mobley makes it through with some of his sanity intact…

    As a concealed Licensed person, I fully support Mobley as the evidence clearly shows he acted in a way needed to defend himself and his friend. Had the two attackers gone home and not built up anger inside, they would both probably be alive today. If Mobley was white I would bet the left would be screaming over the Florida courts decision. Thankfully justice was color blind in this case. Well at least the Florida courts Justice.

    In reading the dissent, it seemed to me that the judge was really straining for reasons to dissent, and doing the very thing an appellate judge is NOT supposed to do, which is evaluate and judge the evidence. He goes to great lengths to make the evidence fit the outcome he wants, and spends little time on the law.

    Or is that just me?


       
       0 
       
       1
      Ragspierre in reply to jnials. | January 4, 2014 at 1:15 pm

      The defendant bears the burden of proving these elements by a preponderance of the evidence, and the trial court’s findings of fact are presumptively correct for purposes of our review. Those findings can be reversed here only if they are not supported by competent substantial evidence. The trial court’s legal conclusions are reviewed de novo. State v. Vino, 100 So. 3d 716, 719 (Fla. 3d DCA 2012) (“In conducting its review, an appellate court must restrain itself from the natural human impulse to consider that its own view of the facts is superior to that of a trial judge”.)

      That is a pretty high bar on appellate review (which is pretty much consistent with appellate law everywhere).

      This judge was not out of bounds from a legal reasoning POV. There is an argument (a pretty good one, according to the standard of review) that the dissent is correct on two counts…

      1. the majority took it on itself to review the trial judge’s findings on the evidence, which did at least leave fact issues for a jury, instead of “presumptively” deferring to the trial judge; and,

      2. the majority erred in not remanding to the trial court.

      I agree that a lot of the dissent reads as a clear expose of this judge’s prejudices regarding the facts, such as his drilling down into the relative size of the actors, the number of smoke breaks and what Mr. Mobley was wearing at points in time.

      It’ll be interesting to see if the Florida supremes take this up, and how they treat the two points in the dissent.


         
         0 
         
         1
        rantbot in reply to Ragspierre. | January 4, 2014 at 5:00 pm

        “the trial court’s findings of fact”

        Can a trial court have a finding of fact when there hasn’t actually been a trial?

        (Not a smartass question; I have no idea. I’m a physicist and engineer, not a lawyer.)


           
           0 
           
           0
          Ragspierre in reply to rantbot. | January 4, 2014 at 5:05 pm

          Yeah. You have to think in cubby-holes.

          The ISSUE here is not guilt or innocence.

          It is whether…by a preponderance of EVIDENCE…the accused shows himself entitled to the SYG protections.

          So, this is a mixed question of fact and law, and the burden here is on the ACCUSED, because this is a “get out of jail” card the precludes further trial.


             
             0 
             
             0
            rantbot in reply to Ragspierre. | January 4, 2014 at 5:59 pm

            Hmmm. Well, that seems to be what the dissenting judge tried to say – that the preponderance of evidence (and/or testimony) fails to show that the accused is relieved of the obligation to stand trial. The dissenter is explicitly NOT claiming that he thinks the accused is guilty, just that some reasonable doubts about his innocence exist, and should be resolved with a real trial.

            And maybe he has a point. The accused wasn’t the one attacked. He shot and killed a person who attacked his friend, but was not obviously continuing to attack him (though not actually leaving the field, either), merely striking a pose which could be considered aggressive (if I read the story aright). The dissenting judge also implied that he didn’t, in this circumstance, consider the attacker’s fist to be a deadly weapon against two considerably larger persons. The accused also shot – four times – another man who hadn’t actually attacked anybody, but MIGHT have been intending to do so, POSSIBLY with a deadly weapon. From the testimony and video footage discussed in the opinion, the guy with four bullet holes might have been running up to attack, OR he might have been running up to restrain his buddy who HAD attacked someone (after all, friends don’t let friends attack while drunk). These are questions which could merit further consideration; that is, a trial.

            Don’t misunderstand me; I’m generally in favor of robust self-defense … so long as it is indeed self-defense. From what I’ve read here, I’d suspect that this is such a case. But I can see that there could be some reasonable questions about that. The apparent fact that the first judge didn’t ask reasonable questions doesn’t mean that that there aren’t any. But maybe that’s not a job for the appellate court?

            Cooking dinner, so this has to be a “drive by” reply to Rantbot, sorry about that.

            (1) Defense of others is just a legitimate use of force as self-defense. It makes little difference if the person being threatened with imminent deadly force is Moseby or his friend.

            (2) We use “deadly force” as shorthand, but in fact the threat may constitute EITHER force capable of causing death OR force capable of causing grave bodily harm. Grave bodily harm includes such things a rape, permanent injury (however slight, usually), serious temporary injury, disabling injury, etc. A blow, even by the bare hand, which breaks the victim’s orbital socket is clearly a force capable of causing “death or grave bodily harm”, as a broken bone of any sort (especially one that could cause permanent loss of vision) is “grave bodily harm”.

            (3) No reasonable person would presume that two friends who had worked in concert throughout the evening to escalate a conflict to the deadly force level would suddenly decide to foil each other’s actions. Perhaps the person shot four times WAS returning to the scene of attack in order to restrain his friend–but no defender would be required to ASSUME that to be the case absent any evidence in support. Here, there was no evidence that the person shot four times was doing anything other than working in concert with the attacker.

            Oops, timer just went off. Later 🙂

            –Andrew, @LawSelfDefense


         
         0 
         
         0
        MouseTheLuckyDog in reply to Ragspierre. | January 5, 2014 at 5:15 am

        Actually, the appellate justices AFAICS did not overturn any findings of fact. In fact most of the actually facts are not in dispute. What the judges did was determine that the conclusions the trial judge from those facts were not reasonable. The cite two things in particular the: the trial judges statement that an object standard for fear of “death … ” was not met because the defendant never saw a weapon,and that he should have brandished the weapon or fired a warning shot. ( I do wish Andrew had posted the trial courts ruling. )

        On your second point, I don’t know if a remand is appropriate here. The appellate court was asked to grant a writ of prohibition, not ruling on a courts finding. They decided ” we grant the petition but withhold issuance of our writ confident that the court below will comply with this court’s order.” That’s about as close to remand as I think they could have gotten in the circumstances.

        As for the dissenting judge, he seems to treat an immunity hearing more like a JMOL hearing in a civil case. We’ve already seen Florida case law say that the burden in an immunity hearing ( for the prosecution) is greater then the burden in a preliminary hearing. I think that overrides any arguments about what facts a jury should decide, or whether jeopardy attaches.

        PS
        When hearing Bush vs Gore, I got the impression that SCOTUS felt that SCoFla had overstepped it’s bounds in it’s first decision, and that not only was it overstepping it’s bounds again, but it was blowing off the earlier SCOTUS decision. It was not going to give it a third chance. Later I skimmed through a book by Judge Posner where he basically says the same thing.

        I think the Appellate Court is doing the same thing here with the trial judge. The arguments that Mobley did not feel threatened because he did not see a weapon, and that he should have brandished the weapon are not only weak arguments but extremely bad law.

    Obviously Mobley should have never gotten out of his car.


    Leave a Comment

    Leave a Reply

    You must be logged in to post a comment.

    Notify me of followup comments via e-mail (or subscribe without commenting.)

    Font Resize
    Contrast Mode
    Send this to a friend