Florida Criminal Lawyer Blog

Our Sarasota firearms crimes defense lawyers were extremely interested in a recent controversy over Florida’s “stand your ground” law. The law, like those of many other states, says people who are attacked by intruders in their own homes or vehicles have no duty to retreat or announce their intentions before using deadly force -- including a firearm -- to fight back. A Nov. 7 article in the Tampa Bay Tribune has an interesting twist on that law: a case in which a towing company owner and his employee were attacked by a man in a moving car. The Second District Court of Appeal heard arguments in early November over whether Donald Montanez of Hillsborough County should be charged with second-degree murder, among other things, in the incident.

The charges against Montanez stem from his 2006 shooting of Glen “Chuck” Rich. Montanez’s company had towed Rich’s wife’s car for illegal parking. Rich showed up and, after a verbal fight, accelerated the car toward Montanez and an employee, Lorraine Marie Whitehead. Montanez fired a gun at the vehicle, killing Rich and giving rise to the murder charge. He claims self-defense in the case under the “stand your ground” law -- but a circuit judge ruled that his actions were not self-defense. Because the bullet passed through a passenger-side window rather than the windshield, the judge said, Montanez knew or should have known that there was no threat. The attorney for Montanez, Jay Hebert, appealed that ruling, arguing that Montanez didn’t know where Whitehead was at the time, making his fear of harm to her reasonable.

In oral arguments, the judges of the Second District Court of Appeal focused on the timing of the fatal shot, the newspaper said. The entire incident took place at 5 a.m. and lasted only a few seconds, Appellate Judge James W. Whatley pointed out -- timing that would make it difficult to conclusively determine everyone’s whereabouts before taking action. For the prosecution, assistant attorney general Timothy Freeland argued that allowing defendants to use the “stand your ground” law to shoot on a “maybe” would grant them too many opportunities to fire without strong evidence of a threat. Previous cases have split the Florida courts, the newspaper said, and a ruling from the Florida Supreme Court may be required to resolve that split.

As Fort Lauderdale gun charges defense lawyers, we believe Montanez has a strong case for expanding the Stand Your Ground law. From a courtroom or an office, it sounds reasonable to require defendants to know for sure where everyone is before firing. But in practice, people trying to protect themselves and others from an immediate threat don’t always have much time. As Supreme Court Justice Oliver Wendell Holmes said, “Detached reflection cannot be demanded in the presence of an uplifted knife.” If Montanez truly believed Whitehead was in danger and acted in her defense, his use of deadly force may have been reasonable or even justifiable. If so, prosecuting him for murder would be contrary to well-established Florida law, as well as his constitutional rights as the owner of a legal firearm.