A video circulating on the Internet this month has gotten tea partiers and other conservative activists riled up over what they see as the never-ending assault on the right to bear arms, particularly with the Obama administration mobilizing on gun control. The video (below) shows a man getting stopped by Citrus County, Florida, Deputy Sheriff Andy Cox for having expired tags on his van. After the man gets out of the car and futzes around to find his license, proof of insurance and registration, the officer notices that the man has a gun on his hip and asks, “What are you carrying a gun for?” The man answers, “I always carry a gun.” At which point the officer quickly gets agitated and demands that he turn around and face the van, or “I’ll shoot you in the back.” The officer then orders the man to the ground, handcuffs him, and calls for backup.
Gun-rights activists have seized on the video as an example of how they are the persecuted, innocent victims of overzealous law enforcement, and they’re using it to support a larger crusade: Ensuring that police officers can never take action against anyone simply because they’re carrying a gun. Which is what the activists are implying happened here. The problem is, the man in the video in fact ran afoul of a state gun law, although Florida authorities declined to prosecute him for it.
Gun-rights activists posted the video online in early January and it has since gone viral—but the incident actually took place in July 2009, a fact they don’t bother to mention. Yet, the date is key: The man in the video, Joel Edmond Smith, was arrested and charged with a violation of what was then the state’s “open carry” prohibition. At the time of his arrest, it was illegal for someone—even with a valid concealed weapon permit—to display a gun openly in public, which Smith did accidentally when he was trying to get his paperwork out of his van. The state legislature changed the law in 2011 so that an accidental display of a legal concealed weapon is no longer a criminal offense, but in 2009, Cox still had solid legal justification for arresting Smith. Nonetheless, the state’s attorney didn’t see the charges against Smith as sufficiently serious to warrant prosecution and they were dropped shortly after he was arrested.
Those facts haven’t stopped gun-rights activists in the past week from urging supporters to call the sheriff’s department and ask that Cox be fired. They’ve done so in the thousands, according to Detective Corey Davidson, an internal affairs investigator with the Citrus County sheriff’s department. Davidson said Cox was placed on paid administrative leave about a week ago, and that the department is investigating the incident (again). He said the department never released the video and that it is unclear how it got out or why it started circulating this month. He added that the man arrested in the video has never made any complaints against the department. (Davidson would not release the defendant’s name because of the investigation, but it’s been circulating on the Internet and is listed in county arrest records.)
The officer’s treatment of Smith, who had a valid concealed weapons permit, may not have been model policing, but his reaction was understandable: According to the Violence Policy Center, at least 14 law enforcement officers have been killed by people legally carrying concealed weapons since May 2007, two of them in Florida. In several of these shootings, the officers were killed while conducting routine traffic stops like the one in the video.
The video appears to have been first posted by Sean Caranna, the executive director of Florida Carry, a major figure in the state fighting for the right for people to carry guns in public. Activists like Caranna want to change the law to ensure that cops can’t confront or search anyone for carrying a gun in public—whether or not that gun may be illegally possessed. Florida Carry is involved in a legal case pending in the Florida Supreme Court that would decide whether the mere presence of a gun on someone’s person can constitute a reasonable suspicion to justify an officer making an investigatory stop or search. A victory for gun activists could make it extremely difficult for law enforcement in the state to crack down on illegal guns and the crime associated with them.
While Smith comes across in the video as a largely harmless victim of an overzealous cop, the legal case Florida Carry is currently pressing involves a bona fide felon, highlighting what’s at stake in the proceeding. Anthony Mackey was hanging around outside a Miami apartment building in 2010 when a police officer drove by and noticed the handle of a gun sticking out of his pocket. The officer confronted Mackey and, after a pat-down, found the gun. He arrested Mackey, who was convicted of illegally carrying a concealed weapon; because he had a prior record, he was also convicted of possession of a gun by a felon. Mackey is appealing that conviction, arguing that because carrying a concealed weapon is legal in Florida, the cop who stopped him performed an illegal search. Mackey didn’t have a concealed weapon permit, but he and his supporters argue that the police officer should never have stopped him in the first place because simply standing around with a gun on one’s pocket isn’t necessarily against the law. For all the police knew, his gun could have been legal.
Despite its pro-gun reputation, the state of Florida isn’t buying this line of argument. In fact, the state attorney general, Pam Bondi (generally a revered tea party figure no less), argued that it’s not only proper but also legal for officers to assume that anyone carrying a firearm is a felon. She writes in a brief:
[A]n overwhelming majority of Floridians are not licensed to carry concealed weapons. As of August 31, 2012, the number of concealed weapon or firearm permits issued in Florida is 971,263. Where Florida had an estimated population of 19,057,542 in 2011, the percentage of the population that is licensed to carry a concealed weapon is only five percent (5%). Given the small percentage of the population that is licensed to carry a concealed firearm, the overwhelming majority of firearms, or 95%, are not licensed to be concealed. Thus, an officer’s suspicion that a firearm is not licensed would be reasonable because, in any given case, there would be, statistically speaking, a 95% likelihood of illegality.
The brief has earned Bondi the wrath of many of the same people who used to worship her after she took Florida’s Obamacare challenge all the way to the Supreme Court. Now they’re calling for her ouster. The case is set for oral arguments this spring. Meanwhile, Florida Carry is contemplating a lawsuit against the Citrus County sheriff’s department because of the incident on the video, so even if the activists lose in Mackey, they’ll be aiming to try again, and this time, perhaps, with a far more sympathetic victim.
