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Florida prosecutors fail in effort to deny self-defense immunity to black male shooter

Florida prosecutors fail in effort to deny self-defense immunity to black male shooter

Florida Supreme Court declines to take case in which appeals court granted Self-Defense Immunity in shooting of two Hispanic attackers.

The Miami Herald is reporting that the Florida Supreme court has declined to hear state prosecutor’s final appeal of self-defense immunity awarded to a black Floridian who shot and killed two Hispanic men in self-defense: “State high court won’t hear appeal in Miami self-defense case” (h/t Miguel over at GunFreeZone.net).

This decision by the State’s highest court ends prosecutorial efforts to convict and imprison Gabriel Mobley. It also sheds some interesting light on the process for self-defense immunity in Florida. (Many states have self-defense immunity laws, but their procedures for granting immunity vary wildly from state to state.)

We previously covered the Mobley case back in January right here at Legal Insurrection, “FL Appellate Court Grants Self Defense Immunity To Black Defender,” noting then that:

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.)

This past week the State’s prosecutors’ efforts on that appeal achieved their final failure, when the FL Supreme Court issued an order declining to hear the matter. (That earlier post includes a comprehensive retelling of the facts of the case.)

As we’ve all long come to expect from mainstream media “news” (see “Murray Gell-Mann Amnesia effect”), the cited Miami Herald article hopelessly confuses two utterly distinct legal doctrines, “Stand-Your-Ground” and self-defense immunity. These two doctrines effectively have nothing to do with one another. Some states have “Stand-Your-Ground,” others have self-defense immunity, some have both, some have neither. TWO DIFFERENT THINGS.  (For a fairly thorough explanation of this, see the Law of Self Defense University video/podcasts #001 on “Stand-Your-Ground” and #003 on self-defense immunity.)

Miguel at gunfreezone.net notes in his blog post an almost humorous part of this case, given Florida’s recent legislative history:  One of the reasons the lower trial court had denied Mobley’s claim to self-defense immunity was because the judge believed it would have been more appropriate for him to fire a “warning shot.”  As noted by the 3d DCA decision that reversed that lower court denial and granted Mobley self-defense immunity:

Here, the court below determined that Mobley did not “reasonably” believe that deadly force was “necessary” to prevent “imminent” death, great bodily harm, or commission of a forcible felony. In doing so, the court discounted the totality of the circumstances facing Mobley and concluded that the use of deadly force was not reasonable, first, because Mobley “never saw a weapon and did not know anything about the possibility of a weapon,” with him only seeing “the second attacker appear to be reaching for something under his shirt,” and second, because Mobley should have brandished his gun, fired a warning shot or told the attackers to stop because he had a gun. (emphasis added)

Later Florida courts would receive defendants who had done precisely as Mobley’s trial judge recommended, while lacking the reasonable belief that deadly force was necessary to prevent imminent death, great bodily harm, or commission of a forcible felony that his trial judge claimed, and been convicted and subjected to horrifically long prison sentences under Florida’s infamous “10-20-Life” mandatory sentencing scheme.

Such cases were the impetus behind Florida’s recently adopted so-called “warning shot” bill, which the state’s Governor signed into law just days ago.

–-Andrew, @LawSelfDefense

P.S. I’m pleased to announce that the National Rifle Association–where I have been a Life Member and Instructor for more than 20 years–has informed me this week that they will begin stocking “The Law of Self Defense, 2d Edition” in the NRA Store. Inventory should be in place by the end of the month or so. 🙂


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 (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.

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Comments

Florida continues to be a joke.

Here we have an African-American man who had legal possession of a firearm, who is attacked and in the end he kills his attackers who were Hispanic…. not one attacker like George Zimmerman faced, but 2 attackers.

The original judge who refused immunity was wrong. The appeal court was correct. What the original judge said was ridiculous and it goes to show how the hype surrounding the Zimmerman case has been adopted by legal people who should know better.

Justice has now been done because Mobley should never have faced second degree murder charges.

“This past week the State’s prosecutors’ efforts on that appeal achieved their final failure…”.

HEH! And the Japanese forced America to cease all belligerence by the simple stroke of a pen, thus ending WWII!

LOVE that…!!!

More like some Florida Judges and prosecutors continue to be jokes with disastrous consequences.
I swear we are dealing with 5 year old kids that need to be told every single detail or they poop on their legal briefs. Then again you have those who doo it just because they resent having less power.

Now the question that will vex us all will be if Mobley should file a “Malicious Prosecution” lawsuit against the District Attorney for filing the charges in the first place.

That’s a long, uphill climb, but it might be worth the work in this case. Anybody know what the “damages” award would be in Florida? Obviously his attorney’s fees and out of pocket costs, but what about “punitive” damages to the municipality, compensatory damages for loss of income during the criminal charge, any loss of freedom from being incarcerated, etc…? Maybe a “loss of privacy” remedy as he was unwillingly made a “limited public figure,” at least according to “Judge” Debra (Half-)Nelson.

If nothing else, Mobley might be able to bully a settlement out of the local DA / Municipality. Make it at least look like he will force them to spend some cash, and let them know in no uncertain terms that it will be less expensive for them simply to “pay up” now, rather than lose and have to pay twice later.

    Forget it.

    If they didn’t go after Corey and crew for burying exculpatory evidence in the Zimmerman case, they’re not going to do squat here.

    –Andrew, @LawSelfDefense

      Was not going after Corey because there was no case or that Zimmerman’s lawyers fired him?

        Going after Corey & Co. for hiding exculpatory evidence should have been first priority of the Florida bar.

        Oh, never mind.

        Florida.

        –Andrew, @LawSelfDefense

          Is there anyone besides the FL Bar could go after Corey?

          Ragspierre in reply to Andrew Branca. | July 14, 2014 at 6:25 pm

          Zimmerman could.

          Actually, I was thinking that Mobley might be able to go after the prosecutors in their personal capacity for gross violation which was actionable beyond their “prosecutor discretion.”

          Basically the charge (as a civil action) would be a civil suit that says that the choice to prosecute was so unreasonable that no prosecutor could have rationally made the jump from the actions taken to the charge levied.

          More than a bar punishment, this would basically say that the prosecutor’s actions rose to the level of an intentional tort.

          Maybe it’s too far of a reach, but its high time that somebody slapped down Corey for the “Nifonging” that she’s been doing. The only two “injured” parties who I know of who have standing would be Zimmerman and Mobley, as they won their criminal trials. Zimmerman in a “not-guilty” and Mobley in an “innocent” due to self-defense.

          Ragspierre in reply to Andrew Branca. | July 14, 2014 at 7:14 pm

          Which goes back to my comment above.

          You can’t get to malice when the prosecutors are acting within the discretion we give them. You could even get prosecutors to testify they personally would not bring the charges, and you’d still be way short of where you have to take a jury.

          WE…us’ins…have to take the capacity of prosecutors to over charge from them, since they ARE doing what society has allowed them to do…even suggested they SHOULD do.

          (This, of course, does NOT apply to pure-d-misconduct like withholding exculpatory evidence, etc….for which prosecutors should be crushed. Like bugs. On the wall.)

        your reply makes no sense.

        Corey is Angela Corey.

      MouseTheLuckyDog in reply to Andrew Branca. | July 13, 2014 at 8:26 pm

      Actually to be fair, “they” whoever you mean by that, did not not go after Corey because Judge “Big Debbie” Nelson ruled that they could go forward with the civil litigation until the criminal litigation was completed. The criminal litigation not being finished because the sanctions hearing was incomplete.

      For some reason the sanctions were not being scheduled ( why is unclear ), so they dropped the sanctions to proceed with the civil litigation. Big mistake in my opinion.

        Good God. Are you incapable of seeing that what you describe is simply the mechanism by which they chose not to go after Nelson?

        “For some reason the sanctions were not being scheduled (why is unclear) . . .”

        Yeah. Completely unclear. An utter mystery. Befuddling. Eric Holder will get right on it.

        Oofah.

        –Andrew, @LawSelfDefense

    MouseTheLuckyDog in reply to Chuck Skinner. | July 13, 2014 at 8:31 pm

    I don’t think he ever was prosecuted. The immunity hearing, denied, stay pending appeal, the appeal.

    Expensive but not as expensive as a trial would have been.

    Ragspierre in reply to Chuck Skinner. | July 13, 2014 at 8:39 pm

    Chuck, I don’t see how you any “malice” out of the prosecutors’ conduct in a relatively new field of law with a case where you had a lot of “jump balls”.

    While I agree with the outcome in Florida, I don’t see where the prosecutors were anything like “malicious” toward Mobley.

      Crawford in reply to Ragspierre. | July 13, 2014 at 8:49 pm

      How were they malicious? Charging second-degree murder.

      I don’t know. I’m kind of spit-balling the idea.

      Perhaps sue in Tort. However, maybe make an argument that under the Florida Bar Rules of Professional Conduct: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Not being entirely sure of the professional rules in Florida, make the argument that those professional rules should be allowed to be enforced through “private remedy” when the Bar fails to properly police its members.

      I suppose kind of treat it like a civil “legal malpractice” suit. You just happen to be naming a prosecutor as the defending party, because she is the one who injured Mobley and now she should be the one to “make him whole.” Mobley might have to make some sort of “Negligence Plus” argument that says not only were the prosecutors negligent in filing the charges in the first place (duty, breach, proximate cause and damages), but that they had malice in their hearts against Mobley due to the particular charge because of their “anti-gun” crusade.

      At this point, I’m just trying to think of interesting ways to make Corey’s life hell in making her pay for her numerous prosecutorial sins.

        Ragspierre in reply to Chuck Skinner. | July 14, 2014 at 7:21 pm

        Chuck, there is such a tort, but it is a pretty stiff climb to prove, especially against a prosecutor who is putatively acting within their area of discretion.

        Now, we agree that discretion is WAY too broad, but we (meaning society) handed it to them. On this, I think Glenn Reynolds has stated the position I adopt. Over-charging and plea bargains should be greatly curtailed. Prosecutors who abuse their power should be jailed…charitably. Tar and feathers would be much more expeditious and a whole lot cheaper.

Racism ! Racism !

Gremlin1974 | July 13, 2014 at 8:58 pm

So basically the trial judge was completely bias from the beginning since he had determined what Mobley “should” have done, which is completely his opinion.

I am beginning to believe the “Florida Bar” is a place these folks go to get wasted before they hear cases.

Doug Wright Old Grouchy | July 13, 2014 at 11:03 pm

What this one Florida case demonstrates so very well is that while we claim to be a nation of laws, all too often, we’re a nation of human wannabes, sometimes disguised as lawyers, sometimes as politicians, some times those that want us to be a nation ruled by lawyers.

Maybe the problem is that we’re only human, except when we become all too inhumane to others. And, sometimes we get lucky as in the final outcome of the Zimmerman case and this one too, to date.

However, luck is getting to be much too fickle these days and the rule of law slipping way in too many senses of that word.

I am so old school I always thought prosecutors were supposed to after the bad guys. Silly me. Now I’m thinking it would be better if I became a bad guy – in Florida anyway. They get far more support from the courts.

JackRussellTerrierist | July 13, 2014 at 11:55 pm

Good for Mobley. I hope he is able to get his life back in order.

Mobley should never have been charged. I’ve wished many times that these prosecutors and judges who pull this BS would be forced to reimburse the defendants they abuse for their legal expenses. They wouldn’t be so quick to abuse their power if THEY had to plead their own civil immunity to a tribunal of citizens by proving the charges were justified rather than political.

“…concluded that the use of deadly force was not reasonable, first, because Mobley “never saw a weapon and did not know anything about the possibility of a weapon,” with him only seeing “the second attacker appear to be reaching for something under his shirt,”…”

Reach under your shirt when a police officer is arresting you. If a police officer is justified in shooting someone who is reaching under an article of clothing, then so should a civilian. Either its a reasonable threat or it isn’t. You can’t have two different standard for police and for civilians, unless the police are held to a higher standard because of their training.

There seems to be more to this case than we’ve read.

See the dissent (p. 17 of the appellate court decision) –

“The trial court’s reference to the defendant’s conflicting statements regarding the fear that purportedly caused him to shoot both decedents—whether a fear of imminent death or great bodily harm to (a) himself, (b) Chico Correa, or (c) both of them—is a reflection (and not the only one) on the defendant’s disparate accounts of the incident, going to credibility”

Apparently the frame rate of the surveillance video was so slow that much of the action was not recorded, so that the court has to rely on Mobley’s testimony as to what exactly happened and when.

However, the “defendant’s conflicting statements” casting doubt on his veracity are not described in the decision. But as the dissent points out, two of four judges thought the doubt was sufficient to justify a trial.

    Gremlin1974 in reply to tom swift. | July 14, 2014 at 4:15 pm

    One factual correction for you there Tom; “two of four judges thought the doubt was sufficient to justify a trial.” but now it is that 2 (imho, obviously bias) Judges thought the doubt was sufficient to justify a trail, however 2 Judges disagreed and with their refusal to hear the case so did the Fl Supreme Court. So not that is 2 against and 2 + the Fl Supreme Court for Mobley.

    The trial judge is so obviously bias that I think they should have asked to have him removed. The dissenting appellate judge obviously believe that civilians should not be allowed to carry guns or defend themselves, most of the conclusions in the dissent are laughable at best. Take for instance that the judge felt that Mobley shouldn’t have rearmed himself after leaving the establishment. Which is what any prudent person who carries for protection would do. Also, I even get the impression that the judge is accusing Mobley of trying to “hide” his gun with the sweatshirt? Isn’t is called a “concealed” weapons permit?

    So the dissenting judge thinks that if you get into a verbal altercation at some indeterminate time you should have to wait before you regain access to your right to be armed and in this case your license to be armed? Preposterous.

      tom swift in reply to Gremlin1974. | July 14, 2014 at 8:20 pm

      They don’t all have to be good arguments. The dissent has to present at least one which would convince the other judges that this case is suitable for a jury trial. Not an argument which might convict Mobley; just one which makes it clear that there are good questions which should be answered, and those answers should come from a jury.

      We don’t have the testimony, so we can only speculate about what those questions might be.

      Here’s one. Why did Mobley shoot and kill Gonzalez? Gonzalez cold-cocked Chico, but we have no statement that he attacked or threatened to attack Mobley, or even that he was mad at him – it was Chico who had chased the two of them away from the women, not Mobley. Page 7 of the decision – “Two seconds later, as Jason [Gonzalez] 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.”

      Would a “reasonable man” have thought that Roly was most likely approaching to attack either Chico or Mobley? If so, then forcible self defense against Roly would be justified. But that wouldn’t automatically justify deadly force used against the guy who had just “stepped back”. One could argue that a “reasonable man” would think that they would gang up on either Chico or Mobley, and I, as Mr Jury, would probably agree.

      But nobody is asking Mr Jury. The dissenting judge thought that a jury trial would be the appropriate venue for deciding such questions.

        Gremlin1974 in reply to tom swift. | July 14, 2014 at 10:00 pm

        “Why did Mobley shoot and kill Gonzalez?”

        Possibly because he is the person who had already engaged in behavior that caused great bodily harm to his friend and had already attacked Mobley himself?

        “But that wouldn’t automatically justify deadly force used against the guy who had just “stepped back”.”

        You mean stepped back just like he had done right after hitting Mobley’s friend and fracturing his orbit? A step back that he used to gain distance before launching an attack on Mobley which Mobley blocked. All of which happened before Mobley drew his weapon. There is zero evidence that the step back was anything other than to re-position for another attack and it certainly wasn’t a retreat.

        Also, that next attack which any reasonable, not to mention sane, person would have expected would have been with the assistance of the attackers friend who it is perfectly reasonable to think was rushing in to join the fight. As far as Mobley knew his friend was out for the count, the guy he had try to make peace with earlier had just launched a completely unprovoked attack on Mobley, and now was being joined by a friend. Oh, also noted that the two attackers had made what could be considered threatening gestures through the window earlier at Mobley and his friend.

        So yes it seems perfectly reasonable to me.

        Even you agree that the jury would probably have seen it as self defense in the end, so doesn’t that say that it is a waste of time to put it before a jury, isn’t that why the immunity clause is there?

    Gremlin1974 in reply to tom swift. | July 14, 2014 at 4:47 pm

    “However, the “defendant’s conflicting statements” casting doubt on his veracity are not described in the decision.”

    Frankly, to me these conflicting statements are related directly to the one of 2 mistake that Mobley made.

    From the Appellate decision;

    “he was transported to the police station where he was read and waived his Miranda rights.”

    No, NO, NO, NO, NO, not ever, never, ever, ever, ever, period, Omega, end of story!

    He had just shot 2 men that he presumably knew had died, one pretty much died at his feet. He was stuck in the back seat of a police car, presumably handcuffed; “for a number of hours”, then taken to the station and questioned; “While there, he gave both an unsworn and a sworn statement.” Note that there is no mention of a lawyer being present for his statements. So his first statements were given while under immense stress while being tired and most likely at the bottom of a huge adrenalin dump. This was just a bad choice on his part, he should have given his initial statement and then “exercised his right to counsel.”

    Yet even with this how much of a case did they cops think they had? “He was then released but not charged.” That’s how good. This was also not a Grand Jury Indictment.

    The second mistake came when; “Several weeks later, after a new lead investigator had been assigned to the case, Mobley agreed to be and was re-interviewed.” I am getting echo’s of the Zimmerman case now. I would be interested in knowing why a “new lead investigator” was assigned in the first place.

    I also note that while the Trial Judge and the dissenting Judge allude to “conflicting statements” the concurring Judges noted that; “While there is no indication that his version of the events changed in any manner during this interview,” so any “conflicting statements” can be easily explained by passage of time, also note once again there is no indication that Mobley had counsel present for this second or “re-interview”, I hope he had been smart enough to at least ask to have a public defender present, but I am not sure that was the case given that he has waived his miranda rights.

    So it was only after a new lead investigator and the state had the benefit of “several weeks” with access to Mobley’s earlier statements got a second chance to interrogate him that’ “he subsequently was arrested and charged with two counts of second degree murder”.

    Also once again a Florida Prosecutor grossly overcharges a person who engaged in lawful self defense.

    Sorry Tom, there is no dirty little secret here other than bias judges and another attempt to put an innocent man in jail for the rest of his life for no reason.

As a juror, I would never convict a shooter in a claimed self-defense case for shooting an attacker actively engaged in an attack merely because the attacker had not yet showed a weapon. Self-defense is not a game of “I’ll show you mine if you show me yours.” If the victim of an attack waits until his attacker actually shows a weapon, it may be too late. I believe that a victim should be able to presume his attacker is armed, as his attacker should have presumed of his victim. The latter presumption may have caused the attacker to reconsider his attack. The former presumption permits the victim to avoid potential grievous bodily harm or death for lack of sufficiently fast reflexes. Turning a self-defense scenario into a game of reactions puts victims at a serious disadvantage to their attackers because action always beats reaction. Victims should be allowed by law (and can be allowed by jurors) to seize the intiative from attackers in order to keep themselves safe. To do otherwise gives criminals a distinct advantage in many (if not most) self-defense situations and makes it more likely that the victims will suffer for it.

    Gremlin1974 in reply to DaveGinOly. | July 14, 2014 at 4:20 pm

    Frankly the law agree’s with you, regardless of what the …… I’m gonna go with “mistaken” Judges conclusions might have been.

    The law only requires that subjectively you feared you were in immediate/imminent danger of death or great bodily harm and that objectively a reasonable person would have believed the same. The law doesn’t state that you had to actually “see” a weapon. Just like the law doesn’t require you to actually be subjected to death or great bodily harm before you defend yourself all that is needed is the reasonable fear.

Maybe I’ve missed something, but what’s up in the Walker-Harvey case?

Eric Friday | July 21, 2014 at 8:12 pm

Prosecutors like Miami-Dade Chief Assistant State Attorney Kathleen Hoague are why I do what I do.

Eric Friday | July 21, 2014 at 8:15 pm

The original version of the Florida SYG bill provided for an award of fees costs and damages against malicious prosecutors. The legislature stripped it. The worse they behave the closer we get to a second attempt.

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