Archive | Criminal Law

It’s the Gabriel Mobley case, State v. Mobley (Fla. Ct. App. Jan. 2, 2014) (2-1 vote). Here’s the summary from the end of the majority opinion:

The record — as corroborated by a video of the events — is that (1) Mobley found himself in the middle of a violent, unprovoked attack on a companion who was standing right next to him, by one of two men who earlier had engaged in an altercation to which he was a witness; (2) after the initial violent attack on Mobley’s friend, the attacker immediately turned his attention to Mobley; (3) less than four seconds after that, the first attacker was joined by the second man involved in the altercation inside the restaurant; and (4) when the second man reached under his shirt after rushing up to join his companion who had not abandoned the field, Mobley believed the second man was reaching for a weapon to continue the attack. With these facts at hand, and with Mobley’s knowledge of these two assailants, the issue for determination was not whether Mobley knew a weapon was possible or whether he actually saw one, but whether a reasonably prudent person in those same circumstances and with the same knowledge would have used the force Mobley used….

It may have been more prudent for Mobley and Chico to skitter to their cars and hightail it out of there when they had the chance; however, as even the State concedes and the court below recognized, Mobley and Chico had every right to be where they were, doing what they were doing and they did nothing to precipitate this violent attack. The only relevant inquiry was whether, given the totality of the circumstances leading up to the attack, the appearance of danger was so real that a

Generally speaking, private employers may terminate their relationship with employees for any reason, or no reason at all — that’s the “employment at will” principle. There are two main legal constraints on this. The first is contractual, for instance some sort of union contract or tenure contract. The second is statutory, such as bans on discrimination based on race, sex, religion and the like (including, in some states, sexual orientation and marital status), or less well-known statutes banning discrimination based on an employee’s vote, and in about half the states banning employer retaliation for certain kinds of employee speech and political activity. But if no such contract or statute is applicable, even conduct that is constitutionally protected against governmental retaliation — such as speech, political activity, off-the-job sexual activity, marital decisions, self-defense, and the like — are not protected against private employer retaliation.

There is, however, a third constraint, created by judges in many states: the tort of “wrongful termination in violation of public policy.” The Utah formulation of this tort, which is similar to that in many other states, bars employer retaliation against an employee for:

(i)[r]efusing to commit an illegal or wrongful act, such as refusing to violate the antitrust laws;
(ii) performing a public obligation, such as accepting jury duty;
(iii) exercising a legal right or privilege, such as filing a workers’ compensation claim; or
(iv) reporting to a public authority criminal activity of the employer.

The complicated category is category (iii). There are lots of legal rights and privileges that don’t trigger that category — people have the right to speak, but, absent a statute, courts generally don’t bar employers from firing employees based on their speech. (There’s one exception, Novosel v. Nationwide Ins. Co. (3d Cir. 1983), but it hasn’t been followed.) Likewise, [...]