'Stand your ground' law on trial

Driven by politics and recession fears, guns flew off Florida shelves, just as the state's new "stand your ground" law, allowing the use of deadly force when threatened, hit the books.

"This law has turned into an absolute nightmare," says ex-prosecutor John Fitzgibbons. "A sheriff and prosecutors in one county may interpret this law completely different that the sheriff and prosecutors in the adjoining county."

Some cases in point: in Wesley Chapel last August, deputies arrested a man for shooting his unarmed, intoxicated neighbor after he kept coming at him. Yet just last week, prosecutors cleared Gregory Stewart of aggravated battery charges, because Stewart, under "stand your ground", swore he was in fear of his life when he pulled the trigger.

But in Tampa, where tow truck driver Donald Montanez shot and killed a man he said was trying to run him over with a car, the Judge denied him a "stand your ground" defense to second degree murder charges. This after Montanez testified, "it scared the hell out of me, I thought he was going to run me over, he was coming right at me, I was scared to death".

The judge said Montanez, wearing a bullet proof vest and a semi-automatic pistol, was looking for confrontations as he towed cars from a lot near a bottle club.

Yet when the Montanez stand your ground case is argued before the Second District Court of Appeals in Tampa this week, most legal experts believe there will not be a final resolution. That, they say, is going to take the State Supreme Court.

"One appellate court", Fitzgibbons says "says that if the attacker is in retreat, you cannot shoot him, another court says if he is in retreat, yes, you can shoot him because you don't know if he's regrouping for another attack."

Some court or the legislature, Fitzgibbons says, has got to sort out what constitutes a legal self-defense in Florida.