The Texas courts have continued to evaluate the nature and extent of liability that property owners have for the acts of independent contractors. As indicated in a new opinion from the Eastland Court of Appeals, this is highly relevant for owners, operators, and drillers.
the property owner had actual knowledge of the danger or condition resulting in the harm and failed to adequately warn.
Tex. Civ. Prac. & Rem. Code § 95.003. The applicability of the statute is also specifically set out. It applies to claims against property owners, contractors, and subcontractors for personal injury, death, or property damage to an owner, a contractor, or a subcontractor, or an employee of a contractor or subcontractor. In addition, the claims must arise from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement. Tex. Civ. Prac. & Rem. Code § 95.002. The statute essentially covers harm arising from construction and repair work being performed by third party contractors.
On its face, the statute clearly reduces the exposure of property owners by relieving them of the old common law exposure for dangers and conditions of which they should have known. The common law standard for this type of exposure historically had been that property owners were liable for dangers and conditions of which they knew or should have known. This statute restricts the liability to those circumstances of which the property owner had actual knowledge.
In 2015, the Texas Supreme Court began to take a closer look at the contours of the statute. Specifically, in Abutahoun v. Dow Chemical Company, the Supreme Court issued its pronouncement on the nature of the exposure that the statute covers. It focused on the language requiring the subject claims to arise from the condition or use of an improvement to the real property in question. In doing so, it evaluated the historical obligations of a premises owner to protect against premises defects on the one hand, and dangerous activities or instrumentalities on the other hand. The Court explained that by including the language “condition or use” in the applicability provision, the legislature intended to cover all types of both premises defect and negligent activity claims.
In 2016, the Texas Supreme Court examined whether contractors’ employees are entitled to the same protection that their employers enjoy under Chapter 95. In the Ineos USA, LLC case, Elmgren was injured while working as a boilermaker for Zachry Industrial, the maintenance contractor at Ineos’ petrochemical plant in Alvin, Texas. He was replacing a valve on a furnace header and one of the lines leading to the furnace apparently had not been properly gas-freed. Some residual gas exploded and Elmgren was burned. He and his family sued Ineos and, of particular importance for this analysis, they also sued the Ineos furnace maintenance team leader.
Generally under Texas law, when a person claims to have been injured by the conduct of an employee of a company, the employee can be sued and the company also can be sued under the doctrine of respondeat superior, which imposes vicarious liability on a company for the acts of its employees. Historically, because companies were available to respond and had deep pockets, plaintiff attorneys refrained from suing employees directly unless there was some other reason to do so, i.e., to create diversity of citizenship in order to avoid removal to federal court or to harass the employee. However, the statute and recent case law have provided the companies with substantial insulation from exposure by requiring a plaintiff to prove the company had actual knowledge of the dangerous condition or use, and this new law did not expressly mention any protections for the individual employees who might allegedly be involved in the incident. So, for energy companies, the issue that this set up was whether their employees could be sued and held liable under the common law, for claims arising in furtherance of company business, even where there is no path to liability against the company itself. Simply stated, energy companies now face the question of whether their employees can be sued and held liable for premises defects and dangerous activity (because they should have known of the threat), even though the company itself is immune because it did not have actual knowledge of that same threat.
In a decision that this writer believes should pose tremendous concern to companies and employees in the industry, the Texas Supreme Court specifically held that the plain language of the statute protects only the property owner, not its employees. The Court discarded all of the arguments that the company team leader made based on his position as Ineos’ agent and also based on his proposed application of the doctrine of respondeat superior. As a result, the Ineos opinion created a gap in the law through which a property owner can avoid liability to an injured contractor but the property owner’s employee may be held directly liable. As the jurisprudence around this statute continues to develop, it will be important for companies to look at their policies around providing protection to their employees from litigation and to conduct insurance audits in order to understand the coverages available to cover the employees caught in the gap.
More recently, the Court of Appeals in Eastland, Texas evaluated the effect of the applicability of the statute to the relationship between an owner/operator and driller. In the Cuevas case, Endeavor was the owner/operator and hired Big Dog Drilling to drill a well on one of its leases in the Midland, Texas area. Cuevas was working to repair a cellar jet line and died after the cellar jet line struck him in the head. He had been using a catline to lift the cellar jet line and the catline unexpectedly became stuck in the cathead, causing the accident.
In the legal aftermath, Cuevas’ survivors sued both Endeavor and Big Dog, alleging negligence and premises liability. The Cuevas opinion focused on the exposure of Endeavor. The plaintiffs originally asserted negligence and premises liability claims. After Endeavor filed a motion for summary judgment on traditional and no-evidence grounds, the plaintiffs supplemented to add claims for negligent hiring, retention, and supervision. The Eastland court referred to the Ineos opinion as precedent, pointing out that general knowledge that using catheads were potentially dangerous does not satisfy the requirement of actual knowledge of a dangerous condition resulting in a claimant’s injury. The Court also evaluated the claims of negligent hiring, retention and supervision claims to determine whether they were barred as contemporaneous negligent acts occurring on the premises at the time the claimant was injured. The Court determined that the negligent retention and supervision claims were sufficiently contemporaneous and occurred on the premises and therefore were subject to Chapter 95 defenses. However, of critical importance, the Court also determined that the negligent hiring claim occurred away from the premises and prior to the injury and therefore was not protected by Chapter 95. Translated into English, this means that companies may defend themselves from negligent retention and supervision claims by asserting and proving that they did not have actual knowledge of the mechanism of injury. However, boiling the opinion down to its most practical terms, when it comes to claims for negligent hiring, companies are subject to claims that they knew or should have known that the contractors were not competent.
The evolution of this line of cases raises two concerns for energy companies, including oil and gas operators. Under the law as it currently exists, any time there is a situation involving construction or maintenance contractors and the company did not know but potentially should have known of a danger to them, there may be a conflict between the interests of a company and those of its employees that needs to be addressed. In addition, negligent hiring continues to be fully actionable against companies unless the hiring occurs at the job site around the time of the incident.
Ms. Rothman is the managing director of the Houston office of Kane Russell Coleman Logan, and serves on the Firm’s Executive Committee. She is the head of the Firm’s railroad practice and has over 30 years of experience in the energy industry including in plants, refineries, oil and gas fields, brown water and blue water transportation, and trucking. She is one of the most experienced trial lawyers primarily representing corporate interests in Texas today.
 Abutahoun v. Dow Chem. Co., 463 S.W. 3d 42 (Tex. 2015).
 Ineos USA, LLC v. Elmgren, 505 S.W.3d 555 (Tex. 2016, pet. denied) (pet. denied, Dec. 16, 2016).
 Cuevas et al. v. Endeavor Energy Res., L.P., No. 11-15-00157-CV, 2017 WL 3194649 (Tex. App.—Eastland, July 27, 2017).


NUNN AND v. Sun Life Assurance Company of Canada, Defendant.
Plaintiffs–Appellants appeal from a September 10, 2012 order of the United States District Court for the District of Connecticut (Arterton, J.) granting Defendant's motion for summary judgment. The district court erred in failing to apply Pennsylvania's reasonable expectations doctrine to Plaintiffs' reformation claims and in finding the breach of contract claims to be time-barred. We therefore REVERSE and REMAND in accordance with the following.
In August 2010, Plaintiffs filed suit in the United States District Court for the District of Connecticut, alleging breach of contract and/or seeking reformation with respect to each policy. MCIC moved for summary judgment, asserting that Plaintiffs' claims were barred by Connecticut's six-year statute of limitations, and that the insurance policies contained unambiguous language limiting Plaintiffs to sixty months of supplemental disability insurance payments if they were able to perform any gainful occupation thereafter. The district court (Arterton, J.) granted MCIC's motion for summary judgment.
Pennsylvania law is somewhat unique in that it employs the reasonable expectations of the insured in some situations to govern contract interpretation. Gilderman v. State Farm Ins. Co., 437 Pa.Super. 217,224 (1994). As in other jurisdictions, the default rule in Pennsylvania is to allow “the language of an insurance policy [to] provide the best indication of the content of the parties' reasonable expectations.” Bensalem Twp. v. Int'l Surplus Lines Ins. Co., 38 F.3d 1303, 1309 (3d Cir.1994). But unlike most jurisdictions, which will not look beyond the four corners of an unambiguous writing, Pennsylvania law instructs that we examine “the totality of the insurance transaction involved to ascertain the reasonable expectations of the consumer.” Dibble v. Sec. of Am. Life Ins. Co., 404 Pa.Super. 205, 210 (1991). Thus, even a clear and unambiguous writing will not bind the insured where the insurer or its agent gives the insured a reasonable expectation that coverage is different than that stated in the written policy. See Tonkovic v. State Farm Mut. Auto. Ins. Co., 513 Pa. 445,455–56 (1987). Under Pennsylvania law when an insurer's agent makes a representation with regard to coverage which is inconsistent with the later delivered policy, that inconsistency creates an ambiguity in that regard notwithstanding the clarity of the policy's provisions and entitles the insured to rely on the agent's representation. See id. at 455.
The Third Circuit surveyed the Pennsylvania Supreme Court's decisions on the doctrine of reasonable expectations eight years ago in Tran v. Metro. Life Ins. Co., 408 F.3d 130,136 (3d Cir.2005). Tran reviewed three cases that provide a roadmap of Pennsylvania's reasonable expectations doctrine: Rempel v. Nationwide Life Ins. Co., 471 Pa. 404 (1977); Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300 (1983), and Tonkovic v. State Farm Mut. Auto. Ins. Co., 513 Pa. 445 (1987). In Rempel, the insured received a verbal confirmation from an agent that the insurance company would match a competitor's offer for life insurance, but signed a contract inconsistent with that commitment. Following the insured's death, the beneficiary sought to collect on the policy as promised by the agent and not surprisingly, the company denied coverage. The Pennsylvania Supreme Court acknowledged that insureds make the purchase decision at the time they apply and “[b]y the time the written policy is received, it has lost its importance to the insured․ It is not unreasonable ․ for a purchaser of insurance to ‘pass' when the time comes to read the policy.” Rempel, 471 Pa. at 410 (citation omitted).
Venetian argued that because the exclusion had never been noted or explained to its principals the exclusion could not be enforced against it. Id. at 305–06. The Pennsylvania high court was not impressed. The court found that the exclusion was clear and unambiguous and therefore had to be enforced as written. Id. at 307.
Unlike the insured in Rempel, Venetian never asked for or received a specific representation that the policy would cover damage to its products. Venetian's principals simply assumed that the general liability policy would cover that category of property damage. Lacking an affirmative misrepresentation, the Pennsylvania Supreme Court concluded that reformation was unjustified. Compare Standard Venetian, 503 Pa. at 306–07, with Rempel, 471 Pa. at 410–11. Some might have been tempted to view Standard Venetian as a signal that the state high court was stepping back from the reasonable expectations doctrine, but this was not to be the case.
These cases reveal that reasonable expectations cases fall into two camps. In one, “where one applies for a specific type of coverage and the insurer unilaterally limits that coverage, resulting in a policy quite different from what the insured requested,” the insured's expectations are reasonable and therefore govern the contract. West v. Lincoln Ben. Life Co., 509 F.3d 160, 168 (3d Cir.2007) (internal quotation marks omitted). In the other, where “the insured received precisely the coverage that he requested but failed to read the policy to discover clauses that are the usual incident of the coverage applied for,” any other expectations are simply unreasonable. Id. at 168 (internal quotation marks omitted).
Lucas' representations to Vaden and Nunn with regard to specific provisions of the policy he subsequently sold to them establish the reasonable expectations of the parties.4 Vaden and Nunn never read their policies, instead assuming that each reiterated the terms Lucas had previously described to them. When they were subsequently injured and unable to work as NBA referees, they anticipated that, as Lucas had promised, they would receive payments until age sixty-five.
Plaintiffs' failure to read the policy does not defeat their reasonable expectations. As the Supreme Court of Pennsylvania explained in Tonkovic, “[w]hen the insurer elects to issue a policy differing from what the insured requested and paid for ․ [t]he burden is not on the insured to read the policy to discover such changes, or not read it at his peril.” 513 Pa. at 454 (emphasis added). Pennsylvania law recognizes that “[c]onsumers ․ view an insurance agent ․ as one possessing expertise in a complicated subject[, and i]t is therefore not unreasonable for consumers to rely on the representations of the expert rather than on the contents of the insurance policy itself.” Rempel, 471 Pa. at 409. Indeed, “the insurance industry forces the insurance consumer to rely upon the oral representations of the insurance agent.” Collister v. Nationwide Life Ins. Co., 479 Pa. 579, 594 (1978). Under the circumstances in this case, “it [was not] unreasonable [for Plaintiffs] not to read [the policy].” See Tonkovic, 513 Pa. at 452 (quoting Rempel, 471 Pa. at 411). Under Pennsylvania law, Vaden and Nunn are therefore entitled to reformation of their policies in line with their reasonable expectations.
Contrary to the holding of the district court, nothing in Pennsylvania precedent suggests that Plaintiffs must allege fraud or misrepresentation before the reasonable expectations of the insured can be applied—in fact, it suggests the opposite. In Tonkovic, the Supreme Court of Pennsylvania applied the reasonable expectations doctrine and found for the insured even though the insured “did not set forth a separate cause of action ․ for negligent misrepresentation.” 513 Pa. at 460 (Zappala, J., dissenting) (emphasis added). Similarly, in Rempel, although the insured's claim was formally a claim of negligent misrepresentation, the Court noted that the insured more simply “sought recovery on the basis of the policy as it should have been written,” and permitted recovery based on the insured's reasonable expectations. 471 Pa. at 413. In short, Plaintiffs' failure to plead negligent misrepresentation or fraud does not prohibit the court from looking past the plain language of their written policies.
But even if we reform the contract to meet the reasonable expectations of the insured, MCIC still presses that Plaintiffs' attempt to enforce the contract is untimely. Its argument is premised on a strained understanding of the relationship between a procedural matter—the applicable state statute of limitations—and the substantive policies inherent in Pennsylvania contract law.
Plaintiffs concede in their brief that Connecticut law controls the statute of limitations—6 years—on their breach of contract claims. See Connecticut General Statutes § 52–576(a). Connecticut, however, does not follow Pennsylvania's version of the reasonable expectations doctrine; nor does it excuse an insured from not reading her policy. Connecticut's view is that the statute of limitations commences for a non-conforming policy at delivery of the insurance contract. See Tolbert v. Conn. Gen. Life Ins. Co., 257 Conn. 118,125–26 (2001).
But the parties and the district court agree that Pennsylvania substantive law defined the contract's interpretation and the parties' obligations thereunder; Pennsylvania is the contract state. Pennsylvania law determines Plaintiffs' right to reformation; absolves the insured from not reading the policy at delivery; and allows the contract to be interpreted (or recast) from the date the carrier acts in a manner inconsistent with the insured's reasonable expectations of coverage. The policies that underlay Pennsylvania's substantive contract law of the reasonable expectations doctrine directly contradict those that drive Connecticut's view of when a claim for non-conforming coverage accrues.
The district court's order and judgment dismissing Plaintiffs' complaints is REVERSED with costs and the matter is REMANDED to the district court for further proceedings in accord with this decision.
2. The court denied MCIC's motion to dismiss the reformation claim for laches but then curiously concluded that even if the reasonable expectations doctrine applied, contract reformation would be improper because it “is an equitable remedy that is sparingly applied, and here, there has been extreme delay in filing suit․” Nunn, 2012 WL 3985162, at *9.
3. We review an award of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in his favor. McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.2009). Summary judgment is appropriate where the record reveals that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
4. This might be a tougher case if the carrier had established that disability policies never define disability beyond five years in terms of inability to perform the job the insured performed at the time the disability began. But Lucas' success on behalf of the Major League Baseball umpires forecloses that argument here.
5. The district court correctly decided that MCIC failed to show any prejudice from the delay in Plaintiffs' bringing their claim for reformation. This conclusion would seem to preclude its later finding that even if Plaintiffs had made out a claim for reformation it would deny the claim in an exercise of its discretion as a result of Plaintiffs' “extreme delay” in commencing suit. The standard for determining laches also measures the court's discretion. To have employed the correct standard only to ignore it later was error as a matter of law.
6. MCIC also asserted in its motion for summary judgment at the district court that it is not accountable as a matter of Pennsylvania law for Lucas' representations, which are the subject of this lawsuit. The district court never reached this issue. On remand, the district court will be required to resolve this issue, as well as the issue of damages, costs, and interest if required by law.


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Registration/Licensing/Accreditation: Through a Letter of Understanding, the Commissioner of Education recognizes the accreditation of non-public schools accredited by any of the accreditation organizations belonging to the Texas Private School Accreditation Commission (TEPSAC).
Recordkeeping/Reports: Private school administrators/designees have an obligation to report suspected criminal conduct occurring on school grounds or at school-sponsored activities to the local police/sheriff. Tex. Education Code Ann. 37.015. Law enforcement agencies will notify the school principal of an arrest or conviction of delinquent conduct of an individual enrolled in a private school. Tex. Code Crim. Proc. Ann. § Article15.27(e).
Curriculum: Students attending a private or parochial school are exempt from compulsory attendance at a public school if the school includes in its course a study of good citizenship. Tex. Education Code Ann. § 25.086 (a)(1).
A school district must ensure that records or transcripts of a transfer student from a Texas nonpublic school are evaluated and that the student is placed in appropriate classes promptly. Tex. Administrative Code, Title 19, Part II, § 74.26 (a)(2). A transfer student from a Texas nonpublic school must complete all state requirements for graduation. 19 Texas Administrative Code, § 74.11 (f).
A driver’s education school shall receive approval from the Texas Education Agency prior to conducting a course at a private school. Tex. Administrative Code, Title 19, Part II, § 176.4(l).
Special Education: Local school districts may contract with approved private facilities for residential special education services. Facilities are considered for approval based on a programmatic evaluation of personnel qualifications, adequacy of physical plant and equipment, and curriculum content. Facilities may be approved in whole or in part. Tex. Education Code Ann. § 29.008.
When a private school student with disabilities is referred to the local district, the district is not responsible for providing services unless the parent(s) choose to enroll the child in the public school full-time or request services under dual enrollment. All state requirements concerning referral, assessment, and determination of eligibility are applicable to students placed in private schools by their parents once the students are referred. Tex. Administrative Code, Title 19, Part 2, § 89.1095.
Health: Children may not be admitted to any elementary or secondary school unless they have been immunized as required by the Texas Board of Health, present an affidavit signed by a physician stating the immunization would be injurious to the health of the student or his family, or present an affidavit that the immunization conflicts with the tenets of his/her church or religious denomination. A religious exemption does not apply in times of emergency or epidemic. Tex. Education Code § 38.001.
The chief administrator of a private school must report the names of children suspected of having a communicable disease, i.e. diseases listed by the Texas Board of Health, to the local health authority or the Department of Health regional director. Tex. Health and Safety Code Ann. §§ 81.003(10); 81.042(c).
Safety: Municipalities with populations greater than 850,000 must provide school crossing guards to assist children going to or leaving a parochial or private elementary or secondary school. Chapter 343.014cal Government Code.
Private schools are entitled to access all criminal history record information that relates to employees, applicants for employment, and volunteers. The school may obtain this information from any law enforcement or criminal justice agency. Private schools must notify the State Board of Educator Certification if an applicant for or holder of a certificate has a reported criminal history. Tex. Education Code Ann. §§ 22.081; 22.083-22.086.
Private schools are entitled to obtain criminal history records through the Department of Public Safety for employees, applicants, or volunteers, including those who drive or will serve as a monitor or aide on a bus in which students are transported. Tex. Government Code 411.097.
Private schools may participate in a missing child prevention and identification program in accordance with state provisions. Under the program, schools distribute program information to the parents and request written consent to take the child's fingerprints. Schools may charge a reasonable fee to cover the costs not to exceed $3. Tex. Education Code Ann. § 33.051 et seq.
It is a criminal offense to possess or consume alcoholic beverages on a public street, alley, or sidewalk within 600 feet of a facility that the person knows is a private school offering K-12 instruction. Tex. Alco. Bev. Code Ann. § 101.75.
Acts of hazing that occur on or off the campus of an educational institution, including a private high school, must be reported to the appropriate official of the institution. Tex. Education Code Ann. § 37.151 et.seq.
Transportation: Street railways or motor buses operating in cities of not less than twenty thousand inhabitants are required to sell tickets to children attending private schools for one-half of the adult fare when school is in session. Tex. Rev. Civ. Stat. art. 4008b; Tex. Rev. Civ. Stat. art. 6544.
Home Schooling: Texas has no laws or regulations related to home schooling.
Public Aid for Private Schools/Private School Students: The Texas Constitution prohibits the state legislature from granting any part of the permanent or available school fund to any sectarian school. Texas Const. Art. VII, sec. 5(a).
No money from the State Treasury or property belonging to the State may be appropriated for the benefit of any sect or religious society. Texas Const. Art. 1, § 7. The Attorney General has ruled that this provision does not prevent a school district from providing band lessons to private school students at a public school. Op. Atty. Gen. 1972, No. M-1074. Texas Constitution Art. 1, sec 7, Art. 3, sections 51, 52.
Teacher service in accredited private schools may be claimed for salary increment purposes. Beginning with the 1989-90 school year and thereafter, private schools accredited by the Texas Private School Accreditation Commission will be listed in the Texas School Directory. Tex. Administrative Code, Title 19, Part II, § 153.1021 (h)(8).
Private school students must be screened to detect vision and hearing disorders and any other special senses or communication disorders specified by the Board of Health. The Department of Health may coordinate screening activities of private schools with school districts, state agencies and volunteer organizations so that efforts are complementary and not fragmented or duplicative, and provide screening personnel, equipment, and services if the requirements cannot be otherwise met. Tex. Health and Safety Code Ann. § 36.004.
Screening to detect abnormal spinal curvature is mandatory for private school children in grades 6 and 9. The Department of Health may coordinate screening activities and provide technical assistance and educational materials to assist private schools. Tex. Health & Safety Code Ann. § 37.001.
The State Board of Education may enter into an agreement with a private nonprofit school to provide special textbooks and instructional aids for the instruction of blind or visually impaired students, if state funds, other than for administrative costs, are not involved. Tex. Education Code Ann. § 31.028 (c).
Food products served by private schools, student organizations, and parent-teacher organizations are exempt from sales tax when served during the regular school day or during a fund-raiser when the proceeds do not benefit an individual. Tex. Tax Code Ann. 151.314(d)(1).
Miscellaneous: Parochial and private schools are expected to observe Texas Week, the week of March 2. Tex. Civ. Stat. Art. 6144a.
A private school may administer the state assessment instrument required for all public schools. The private school must reimburse the agency for the cost of administering the assessment, not to exceed the cost for administering the same assessment to a student enrolled in a public school. Tex. Education Code Ann. § 39.033.
A private school administering the state assessment instrument shall provide to the commissioner performance results on the academic excellence indicators adopted by the State Board of Education. Tex. Administrative Code, Title 19, Part II, § 101.1 (j). The private school shall notify the student and his or her parents or guardian of test results. Tex. Administrative Code, Title 19, Part II, § 101.5.


Chapter 25A - Retail Installment Sales Act.
§ 25A-1. Scope of act.
§ 25A-2. "Consumer credit sale" defined.
§ 25A-3. "Payable in installments" defined.
§ 25A-7. "Cash price" defined.
§ 25A-8. "Finance charge" defined.
§ 25A-9. "Amount financed" defined.
§ 25A-10. "Official fees" defined.
§ 25A-11. "Revolving charge account contract" defined.
§ 25A-12. "Consumer credit installment sale contract" defined.
§ 25A-13. "Consumer Credit Protection Act" defined.
§ 25A-14. Finance charge rates and service charge for revolving charge account contracts.
§ 25A-15. Finance charge rates for consumer credit installment sale contracts.
§ 25A-16. Transfer of equity.
§ 25A-17. Additional charges for insurance.
§ 25A-18. Confession of judgment.
§ 25A-20. Disclaimer of warranty.
§ 25A-22. Receipts for payments; return of title documents upon full payment.
§ 25A-23. Collateral taken by the seller.
§ 25A-24. Identification of instruments of indebtedness.
§ 25A-25. Preservation of consumers' claims and defenses.
§ 25A-26. Substitution of collateral.
§ 25A-27. Application of payments.
§ 25A-28. Form of consumer credit installment sale contract.
§ 25A-31. Consolidation and refinancing.
§ 25A-32. Rebates on prepayment.
§ 25A-32.1. Unearned finance charge credits on prepayment of loans secured by real property and mobile home loans.
§ 25A-33. Terms of payments.
§ 25A-35. Statement of account.
§ 25A-36. Certificates of insurance and rebates.
§ 25A-38. "Home-solicitation sale" defined.
§ 25A-39. Buyer's right to cancel.
§ 25A-40. Form of agreement or offer; statement of buyer's rights.
§ 25A-41. Restoration of down payment; retention of goods.
§ 25A-42. Duties as to care and return of goods; no compensation for services prior to cancellation.
§ 25A-44. Remedies and penalties.
§ 25A-45. Conflict with Consumer Credit Protection Act.


text:
Gabriel Mobley, Petitioner, vs. The State of Florida, Respondent.
Carlos J. Martinez, Public Defender, and Susan S. Lerner Assistant Public Defender, for petitioner.
Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant General Attorney, for respondent.
Before SHEPHERD, C.J., and WELLS and SALTER, JJ. SHEPHERD, C.J., concurs. SALTER, J. (dissenting).
We have jurisdiction to review the instant petition for writ of prohibition seeking to preclude the court below from proceeding further in adjudicating criminal charges against petitioner, Gabriel Mobley, on the grounds that Mobley is immune from prosecution under the provisions of Chapter 776 of the Florida Statutes (Florida’s Stand Your Ground Law). See Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st DCA 2012) (“A writ of prohibition is the proper vehicle for challenging a trial court’s denial of a motion to dismiss a charge on the ground of immunity from prosecution pursuant to the Stand Your Ground Law.”); see also Little v. State, 111 So. 3d 214, 216 n.1 (Fla. 2d DCA 2013) (“We believe that the better avenue for review [of orders denying motions to dismiss asserting immunity under the Stand Your Ground Law] is a petition for writ of prohibition, which the supreme court has consistently held is an appropriate vehicle to review orders denying motions to dismiss in criminal prosecutions based on immunity.”).
The standard of review applicable to this case is the same as that which is applied to the denial of a motion to suppress. See Mederos, 102 So. 3d at 11 (stating that “a review of a trial court’s order on a motion claiming immunity under the [Stand Your Ground] statute is governed by the same standard which applies in an appeal from an order denying a motion to suppress”); State v. Vino, 100 So. 3d 716 (Fla. 3d DCA 2012) (citing Mederos for the applicable standard of review). Under this standard, the trial court’s findings of fact are “presumed correct and can be reversed only if they are not supported by competent substantial evidence,” while the trial court’s legal conclusions are reviewed de novo. Vino, 100 So. 3d at 719. For the reasons that follow, we grant the petition but withhold issuance of our writ confident that the court below will comply with this court’s order.
Gabriel Mobley, the petitioner here, was charged with two counts of second degree murder following a shooting which took place outside a local Chili’s restaurant on February 27, 2008. The day of the fatal shooting, Mobley finished work around 3:00 pm at his pressure cleaning business, and after going home to shower and change, went to work at the tax preparation office of high school friend, Jose (Chico) Correa.1 After working several hours at Chico’s business, 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.2 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.3 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. Because the booth was crowded, Mobley, Chico, and another of Chico’s employees (another man) sat at the bar nearest the booth.
Sometime after food and drinks were ordered, Mobley and Chico went outside to smoke. They returned to the bar where they ate, drank and conversed without incident. However, things 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.
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.”5 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.6 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.7 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.8 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.
Following the shooting, Mobley remained at the scene and had the other members of his party, who by then were leaving in their cars, return to wait for the authorities. When police officers arrived only minutes later, Mobley told them that he was armed and otherwise fully cooperated with them. After being held in a police car for a number of hours, he was transported to the police station where he was read and waived his Miranda10 rights. While there, he gave both an unsworn and a sworn statement. He was then released but not charged.
Several weeks later, after a new lead investigator had been assigned to the case, Mobley agreed to be and was re-interviewed. While there is no indication that his version of the events changed in any manner during this interview, he subsequently was arrested and charged with two counts of second degree murder. Mobley claimed below and now claims here that these facts are undisputed and demonstrate that he is immune from prosecution as provided by sections 776.012 and 776.032 of the Florida Statutes. We agree in part that the pertinent facts are not in dispute and that Mobley is entitled to immunity from prosecution.
Florida law confers immunity from criminal prosecution and civil liability, without the obligation to retreat, on those who use deadly force reasonably believing that the use of such force is necessary to either prevent imminent death or great bodily harm to self or others or to prevent the imminent commission of a forcible felony. See ß 776.032, Fla. Stat. (2013) (providing that a “person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force”); see also ß 776.012(1), (2), Fla. Stat. (2013) (providing that a “person is justified in the use of deadly force . . . and does not have a duty to retreat if: (1) [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) [u]nder those circumstances permitted pursuant to s. 776.013”).
An objective standard is applied to determine whether the immunity provided by these provisions attaches. See Montanez v. State, 24 So. 3d 799, 803 (Fla. 2d DCA 2010) (confirming that in determining whether the immunity accorded by section 776.032 attaches, “the objective, reasonable person standard by which claims of justifiable use of deadly force are measured” should be applied). That standard requires the court to determine whether, based on circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant. See Toledo v. State, 452 So. 2d 661, 663 (Fla. 3d DCA 1984) (“[A] person in the exercise of his right of self-defense may use ‘only such force as a reasonable person, situated as he was and knowing what he knew, would have used under like circumstances.'” (quoting People v. Moody, 62 Cal. App. 2d 18, 143 P.2d 978, 980 (1943))); see also Chaffin v. State, 121 So. 3d 608 (Fla. 4th DCA 2013) (confirming that the standard to be applied for determining whether a person is justified in using deadly force in self-defense is not a subjective standard as to the defendant’s state of mind, but an objective standard as to a reasonably prudent person’s state of mind); Price v. Gray’s Guard Service, Inc., 298 So. 2d 461, 464 (Fla. 1st DCA 1974) (“The conduct of a person acting in self defense is measured by an objective standard, but the standard must be applied to the facts and circumstances as they appeared at the time of the altercation to the one acting in self defense.”).
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. We disagree for the following reasons.
As a preliminary matter, Mobley was not required to warn that he had a gun. Section 776.012(1), (2), clearly states where the danger of death, great bodily harm or the commission of a forcible felony is “imminent,” the use of deadly force is justified. The statute contains no warning requirement. See T.P. v. State, 117 So. 3d 864, 866 (Fla. 4th DCA 2013) (quoting McWhorter v. State, 971 So. 2d 154, 156 (Fla. 4th DCA 2007) (“… [U]nder section 776.013, a person who is attacked is allowed to stand his or her ground and ‘meet force with force.’ It appears that the new law places no duty on the person to avoid or retreat from danger, so long as that person is not engaged in an unlawful activity and is located in a place where he or she has a right to be. ß 776.013(3), Fla. Stat. (2005) (Internal citation omitted).”).
Q. Okay. So, as soon as he [Roly] was coming towards you, you shot?
Q. Why did you first pull your firearm?
A. By this time, you know, I didn’t know what they had done–I didn’t know what Chico had got hit with, and it was so much blood, I freaked, I was scared and I seen [sic] this other guy coming up from the back.
And he reached up under his shirt. So, I was scared, I thought, they were going to shoot or kill us or stab us or something. So I was scared.
The shooting at issue did not occur in a vacuum. Mobley did not shoot two innocent bystanders who just happened upon him on a sidewalk. 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.
Rather than applying the objective standard required, the court below instead focused on the events that transpired inside the Chili’s to entirely discount Mobley’s “expressed beliefs or intentions” about what occurred outside the Chili’s. The court found that because Mobley was not directly involved in the earlier altercation inside the restaurant between Chico and Jason/Roly, but had acted as peacemaker, he could not have feared for his own life during the events which happened later outside the restaurant. However the events that occurred inside the Chili’s are relevant only insofar as they provide the context for Mobley’s actions when the attack outside the restaurant occurred.
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 reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of deadly force.
Because the preponderance of the evidence demonstrates that had the proper standard been applied, Mobley’s use of deadly force was justified, the motion to dismiss should have been granted. See Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010) (confirming that, where a defendant claims immunity from prosecution under sections 776.012, 776.013 and 776.032, the court below must determine whether that defendant has shown by a preponderance of the evidence that the immunity attaches); Vino, 100 So. 3d at 717 (“When a defendant invokes the statutory immunity, the trial court must hold a pre-trial evidentiary hearing to determine if the preponderance of the evidence warrants immunity.”).
In so holding, we are mindful that, under our standard of review which is akin to that applied to the trial court’s ruling on a motion to suppress, the trial court’s ruling comes to this court “clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” See R.J.C. v. State, 84 So. 3d 1250, 1254 (Fla. 4th DCA 2012) (quoting Terry v. State, 668 So. 2d 954, 958 (Fla. 1996)); Smith v. State, 719 So. 2d 1018, 1021 (Fla. 3d DCA 1998) (same). Nevertheless, considering the entire record and reasonable inferences derived therefrom in a manner most favorable to the trial court’s ruling, we nonetheless find there is no basis to support the trial court’s decision to deny immunity in this case.
I respectfully dissent. Under the Stand Your Ground (SYG) immunity statute11 and applicable case law,12 the trial court is the initial fact finder regarding a defendant’s claim of immunity. The SYG hearing is nothing more or less than a mini-trial conducted by the court without a jury on the fact-intensive issues framed by the statute: in the present case, did the defendant reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony? 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.”).
Regarding the facts, four judges have now split evenly on whether the defendant’s decisions to 1) take his Glock .45 out of the glove compartment of his truck, following a verbal altercation within the restaurant, and 2) fire five shots into the two decedents, after a single punch was thrown outside the restaurant, met the requirements for SYG immunity. One was the trial judge who actually heard and observed thirteen witnesses under oath and subjected to cross-examination.13 This Court was of course required to conduct its review of the testimony by reading it and without observing the witnesses as they testified.
The facts are also ambiguous when it comes to the surveillance video recorded by the camera affixed to the outside of the restaurant. Did deceased victim Carrazana appear to be reaching for a weapon, as the defendant testified? The video has only two frames per second (human vision is equivalent to 60 frames per second), and the camera caught the action from above and behind the incident. As described below, the few video freeze-frames of the incident seem to me to disprove, rather than prove the defendant’s testimony. These uncertainties confirm that the defendant’s claim is a classic, fact-based issue for the jury at trial.
Nor do I agree that the trial court committed any error of law in ruling on the defendant’s motion. 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, and not a legal error (application of a “subjective” standard regarding the defendant’s state of mind as opposed to an “objective” standard regarding a reasonably prudent person’s state of mind), as characterized by the majority. For these reasons, we should deny the defendant’s petition without prejudice to his right to present SYG immunity and self-defense as affirmative defenses at trial.
A number of additional facts in the record before us warrant specific consideration. The first is that the defendant and his friend Mr. Correa went outside to smoke cigarettes three times during their visit to the restaurant on the evening in question. During the first and second of those cigarette breaks, the defendant was unarmed–his firearm was inside the glove compartment of his truck–and he was wearing a sun shirt. Only at the time of his third exit from the restaurant (after the verbal exchanges inside the restaurant, and after the defendant had told others that he planned to return home to his pregnant wife), did he instead unlock his truck, put on a sweatshirt, retrieve his firearm and holster from the glove compartment, and tuck the holstered firearm into his belt under the sweatshirt. Instead of going home to his wife as he had said, the defendant lingered on the sidewalk with Mr. Correa for a third, fateful smoke.
It was a cool February evening in Miami when the defendant had first arrived at the restaurant (well after 9:00 p.m.), but he had not put on his sweatshirt for the first and second cigarette breaks. He did not unlock his truck and put on his sweatshirt until the sweatshirt was used to cover his holster and Glock .45.
A third factual consideration involves the surveillance video of the incident and freeze-frame images from that video. The images do not corroborate the testimony by Mr. Correa and the defendant that the second decedent, Mr. Carrazana, seemed to be reaching under a jacket as if for a weapon. To the contrary, Mr. Carrazana is not fully visible in the images until time stamp label 23:54:09. In that image, the defendant was off the sidewalk, three feet or so into a vacant parking place, and Mr. Carrazana had both hands well away from his waistline, extended as in a normal gait. Both hands were visible and neither held a weapon. His sleeves were rolled up.
In the next frame, stamped 23:54:10, the defendant’s line of sight to Mr. Carrazana was blocked by Mr. Gonzalez. In the very next frame, 23:54:11, both Mr. Gonzalez and Mr. Carrazana are staggering from the first gunshot or gunshots that hit them.15 The evidence at the SYG hearing did not establish that either decedent carried a knife, displayed a knife, or that Mr. Correa or the defendant ever saw a knife before the defendant opened fire. The two restaurant knives later found outside the door (after the incident) were not shown by the defense to have been obtained, displayed, or held by either decedent at any time.
The fourth and final factual point warranting additional discussion is also pertinent in self-defense and SYG cases–the relative size and weight of the parties involved in an attack claimed to justify the use of deadly force. In the present case, the decedents were five feet, eight inches, and 217 pounds (Mr. Gonzalez), and five feet, six inches, and 156 pounds (Mr. Carrazana). Mr. Correa, punched by Mr. Gonzalez, was six feet, one inch, and 285 pounds, while the defendant was six feet, two inches, and weighed 285 pounds.
Having addressed these four additional factual points that were part of the record before the trial court, I next turn to the majority’s conclusion that the trial court applied the incorrect legal standard to the evidence. As noted at the outset, the trial court’s rulings on matters of law are subject to de novo review here.
While I agree with the majority that the “objective, reasonable person” standard applies to an assessment of whether the use of deadly force is justifiable (under Montanez v. State, 24 So. 3d 799, 803 (Fla. 2d DCA 2010), and Fla. Std. Jury Instr. (Crim.) 3.6(f)), I disagree with the majority’s further conclusions regarding the trial court’s adherence to that standard and the remedy applicable to the alleged failure to apply that standard.
As to the argument that the trial court erroneously applied a subjective, state-of-the-defendant’s mind standard, it must be remembered that the “objective, reasonable person” is not a hypothetical, unknowing stranger dropped into the altercation and the defendant’s shoes a microsecond before Mr. Gonzalez punched Mr. Correa. The “objective, reasonable person” is a person situated in the same circumstances as the defendant and knowing what the defendant knew. Montanez at 803 n.6; Slip Op. at 9-10.
In the present case, the trial court correctly assessed those circumstances and the defendant’s state of knowledge; the trial court did not otherwise dwell on the defendant’s subjective state of mind or intentions. The fact-intensive determination of whether a reasonable and prudent person in the defendant’s shoes might have perceived that Mr. Carrazana was reaching for a deadly weapon turned on the court’s assessment of the defendant’s credibility. The defendant and his friend of 17 years were the only living eyewitnesses to that important fact. The video and freeze-frame images did not definitively prove or disprove the reasonableness of that alleged perception–an alleged perception which turned out to be erroneous.
Simply stated, the justifiability of this defendant’s use of force, or of a hypothetical “reasonably prudent person’s” use of force, turns on a fact dependent on the defendant’s credibility. The majority disagrees with the trial court regarding the trial court’s assessment of the defendant’s credibility, but that is an assessment to which we should defer. There is competent, substantial evidence in this record to support the trial court’s determination that the defendant failed to prove his entitlement to immunity. In such a case, the petition should be denied. Mederos v. State, 102 So. 3d 7, 10 (Fla. 1st DCA 2012).
My second departure from the majority’s analysis involves the remedy that would be appropriate if it were established (though it has not been) that the trial court committed legal error by applying the wrong standard. The majority would grant the petition and thereby mandate the discharge of the defendant on grounds of immunity. However, since jeopardy never attached–the SYG hearing is a mini-bench trial on a jurisdictional issue–the correct remedy based on the majority’s conclusion would be a remand to the trial court to apply the allegedly-correct legal standard and rule accordingly. That is the result when, for example, the trial court erroneously grants a motion to dismiss in a criminal case and we reverse and remand for reinstatement of the information. State v. Gomez, 103 So. 3d 258 (Fla. 3d DCA 2012).
For these reasons, I respectfully dissent. I would deny the defendant’s petition for prohibition without prejudice to his rights to raise self-defense and SYG immunity as affirmative defenses and issues for resolution by a jury. I would also vacate this Court’s order of August 15, 2013, which stayed criminal trial proceedings in this case pending further order of this Court.
1 Mobley testified that he was temporarily working two jobs to earn extra money because his wife, a school teacher, was soon to go on maternity leave following the birth of the couple’s second child.
2 It is conceded that Mobley was properly licensed to carry a concealed firearm.
4 These events were corroborated by a number of witnesses and are not disputed.
5 Alexandra Martinez, a server at the restaurant called by the State to testify, confirmed that Jason and Roly continued to be angry after the initial shouting match had ended and appeared to become angrier as the evening wore on.
6 Ms. Martinez also observed this as did Roberto Londono, the bartender at the restaurant.
7 The video recording confirms that Chico was wearing a coat and that most everyone else who appears on the recording was wearing either a sweat shirt or a long sleeved shirt.
8 The third man walked to his car parked next to Chico’s and remained there until after the shooting occurred.
9 According to Ms. Martinez, the man who went to Roly’s aid after he was shot took a knife with him when he left the restaurant.
10 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
11 ß 776.032, Fla. Stat. (2008).
12 Darling v. State, 81 So. 3d 574 (Fla. 3d DCA), review denied, 107 So. 3d 403 (Fla. 2012).
13 “The legislature’s enactment of section 776.032 placed the burden of weighing the evidence in ‘Stand Your Ground’ cases squarely upon the trial judge’s shoulders.” State v. Gallo, 76 So. 3d 407, 409 (Fla. 2d DCA 2011).
14 Compare ß 784.03(1), Fla. Stat. (2008) (misdemeanor battery) to ß 784.041(1), Fla. Stat. (2008) (felony battery) and ß 784.045, Fla. Stat. (2008) (aggravated battery, also a felony).
15 The forensic evidence confirmed that one gunshot, fired from several feet away, hit Mr. Gonzalez (who had been in front of Mr. Carrazana and was closest to the defendant), who then turned and staggered several steps away from Mr. Mobley before collapsing and dying. Additional gunshots (also fired from several feet away) hit, and ultimately killed, Mr. Carrazana.

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The Anti-Defamation League (ADL) was founded in 1913 by Sigmund Livingston, a Chicago lawyer, to combat the anti-Semitism and discrimination against Jews that was prevalent at the time. The charter of the league states: ‘‘The immediate object of the League is to stop, by appeals to reason and conscience and, if necessary, by appeals to law, the defamation of the Jewish people. Its ultimate purpose is to secure justice and fair treatment to all citizens alike and to put an end forever to unjust and unfair discrimination against and ridicule of any sect or body of citizens.’’ Livingston’s action was in direct response to the infamous case of Leo Frank, the Jewish manager of a Georgia factory, who was falsely convicted of the murder of a young female worker and later dragged from his jail cell and lynched by a mob after the governor of Georgia announced he was commuting Frank’s death sentence.
From its inception the ADL has been associated with the Independent Order of B’nai Brith, a Jewish fraternal and service organization founded in New York City in 1843. The parent organization is engaged in a wide variety of community service and welfare activities, including the promotion of human rights, assisting hospitals and victims of natural disasters, and, through the ADL, opposing anti- Semitism and other forms of racism.
In the first three decades after its founding, the ADL mission centered on combating anti-Semitism. It pursued this goal in two major ways. First, it sought to expose and counter the bigotry of groups such as the Ku Klux Klan and individuals, such as Henry Ford, whose newspaper, The Dearborn Independent, was notoriously anti-Semitic, even going so far as to publish the notorious Czarist anti-Semitic forgery The Protocols of the Elders of Zion. In the 1930s, with the ascendance of Adolf Hitler, the ADL also had to combat the rise of domestic groups eager to mimic the Nazi’s anti-Semitic actions, including German- American Bund and the Christian Front, headed by Father Charles Coughlin. Second, the league combated the pervasive economic and social discrimination against Jews, as exemplified by quotas on Jewish applicants to colleges and professional schools; company, or even industry-wide, policies barring the hiring of Jews; and discrimination against Jews in hotels, restaurants, and other public accommodations.
After the Second World War, the ADL expanded its mission to include the eradication of bias and discrimination against people of all races and religions. The organization at this time began filing amicus curiae briefs in Supreme Court cases involving religious freedom and civil rights and has remained active in this area ever since. The league has, for example, filed an amicus brief in every major Supreme Court case concerning church–state separation since 1947, as well as numerous cases on affirmative action, hate crimes, and other subjects.
The positions the league has taken in its amicus briefs are generally unsurprising given its stated goals. In religion-clause cases, it has argued for a strict view of the separation of church and state, tempered by a broad view of religious accommodation in cases in which minority religions may be threatened. Thus, it opposed a Christmas display on government property in County of Allegheny v. ACLU, 492 U.S. 573 (1989), and the display of the Ten Commandments on such property in Van Orden v. Perry, 125 S.Ct. 2854 (2005), and McCreary County v. ACLU of Kentucky, 125 S.Ct. 2722 (2005); opposed school prayer in Engel v. Vitale, 370 U.S. 421 (1962), and Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000); and opposed publicly funded tuition vouchers for religious schools in Zelman v. Harris–Simmons, 536 U.S. 639 (2002), and government aid in the form of instructional materials and equipment to religious schools in Mitchell v. Helms, 530 U.S. 793 (2000). However, the organization defended the constitutionality of a federal statute that protects the religious rights of prisoners as a valid accommodation of religion in Cutter v. Wilkinson, 125 S.Ct. 2113 (2005).
With the founding of the State of Israel in 1948, the ADL began combating what it viewed as anti-Zionist organizations and publications. In more recent years, the intense debate over the Palestinian–Israeli conflict has led the league to attack what it views as a new form of anti-Semitism: the claim that Jews and Jewish organizations unfairly tag any criticism of the State of Israel with an anti-Semitic label. The league has explicitly stated that criticism of specific Israeli actions or policies in and of itself does not constitute anti- Semitism, but also notes that there are those who attempt to mask anti-Semitism under the guise of criticism of Israel or Zionism.
In the 1960s, the organization became actively involved in the emerging civil rights movement and actively worked for the passage of the Civil Rights Acts of 1964 and 1968 and the Voting Rights Act of 1965—three of the most important pieces of legislation that resulted from movement. As happened with other predominantly white organizations involved in the movement, tensions emerged between the ADL and the African-American community in the 1970s and have continued to some degree to the present, in light of differing positions on affirmative action, the Israeli–Palestinian conflict, Louis Farrakhan and the Nation of Islam, and other issues. Affirmative action in education has been a major dividing point between the two groups, with the ADL filing amicus briefs opposed to racial preferences in Bakke (Regents of the University of California v. Bakke, 438 U.S. 265, 1978) and Grutter v. Bollinger, 539 U.S. 306 (2003). Despite these tensions, the league remains strongly committed to cooperative efforts with the African- American community in fighting racial prejudice.
In more recent years, the ADL has identified and responded to new forms of bigotry and prejudice seen from the white-supremacist movement and other domestic hate groups. The organization has also expressed grave concern about the effect that the religious Right is having in eroding what the league views as the appropriate degree of separation between church and state in the United States. Finally, the ADL has grown increasingly concerned about, and is actively seeking to combat, what it perceives as the growth of anti-Semitismon American college campuses and the efforts by evangelical Christians to bring an explicitly religious message into public schools.
ADL in the Courts: Litigation Docket, Anti-Defamation League, New York 1991 through 2001.
Dinnerstein, Leonard. The Leo Frank Case. Athens, GA: University of Georgia Press, 1999.
Ivers, Greg. To Build a Wall: American Jews and the Separation of Church and State. Clinch Wise, VA: University of Virginia Press, 1995.

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