A reel dilemma

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Posted February 25, 2022 | By Jennifer Hunt Murty

The Marion County Sheriff’s Office and the City of Ocala have settled a federal lawsuit brought by two residents who were detained by law enforcement officers in 2019 while openly carrying firearms on their way to go fishing in a downtown park.

On Sunday, Sept. 20, 2019, Kevin Sona and Tom Kuehn were walking along 8th Avenue around the 700 block toward Tuscawilla Park, records show. One of the men had a rifle slung across his back and the other carried a holstered pistol. Both were also carrying fishing rods.

Deputy Walton Lowery, who was off duty and heading to a church service at the Reilly Center in Tuscawilla Park, saw the pair and relayed the information to two other deputies, Eli Serrano-Prusinski and Chris Rafferty, who were on special detail for the service.  

Another off-duty deputy, Daniel Barker, earlier saw Sona and Kuehn walking on Silver Springs Boulevard and took a photo of them.

At around 9:30 a.m., around 10 minutes after Lowery reported seeing the armed men, the other deputies saw Kuehn and Sona approaching the Reilly Center. They drew their firearms and ordered the pair to the ground, while also notifying the Ocala Police Department, which has jurisdiction over the park area.

Within 30 minutes of the incident, attorney Eric J. Friday sent an email to Tim McCourt, attorney for the sheriff’s office, that read, “One of my members is currently being illegally detained by your deputies at Tuscawilla Park in Ocala. Please ensure all evidence, body cam footage, dash cam footage, and written notes are preserved from this incident.”

According to a complaint filed in January 2021, Kuehn and Sona “were shocked to have firearms drawn on them and to have two firearms pointed directly at them; they were placed in fear of death and/or great bodily harm” by the deputies.

During the incident, the complaint states, Sona had a business card ready to hand to deputies with the relevant Florida Statute written on it.

While Florida Statutes generally prohibit someone from either carrying openly or concealing a weapon without a permit or licensure issued by the state, it gives a few exceptions to the rule. One such exception is when “a person is engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition.”

The complaint noted that Sona and Kuehn were “carrying fishing rods and other fishing equipment so that it was readily apparent that they were going fishing” along with “firearms that were visible to the ordinary sight of others as permitted by Sec. 790.25(3)(h), Fla. Stat.”

McCourt said law enforcement officers need only a reasonable suspicion to detain somebody for violating Florida’s laws against openly carrying firearms to investigate whether their behavior fits within one of the exemptions in the law that allows for open carry.

Because there is not a large body of case law describing what constitutes “going to or returning from a fishing expedition,” during which time a person can lawfully openly carry a firearm, he said law enforcement officers have to consider the totality of the circumstances in determining if a person’s conduct warrants detention and further investigation, just as courts have to consider the totality of the circumstances in determining whether any detention or arrest was lawful.

Kuehn and Sona allege they were forced to lie on the ground in full view of the public for at least 10 minutes awaiting the arrival of officers from the OPD. The men were not arrested, and McCourt said Kuehn and Sona were allowed to continue walking to the park to fish.

The men also said the way the signs were placed around the Reilly Center that morning, a person would have no way of knowing a church service was in progress unless they reached the center and noticed signs indicating “church” on them.

The lawsuit lasted approximately a year before it was settled in December during court-ordered mediation. Under the settlement agreement, Kuehn and Sona received no money and were obligated to pay their own attorney’s fees and costs for bringing the case.

The sheriff’s office agreed to pay the full cost of the mediation and the City of Ocala agreed to pay $1,000 to the Ocala Domestic Violence/Sexual Abuse Shelter and $1,000 to the Humane Society of Marion County.

McCourt declined to detail what was said during mediation, but he did say that the sheriff’s office entered into the mediation feeling that the deputies were justified in stopping and detaining Kuehn and Sona.

“Our laws allow people to openly carry firearms when they are fishing or going fishing because there is a legitimate need for it,’’ he said. “But just because somebody is carrying a fishing pole, it doesn’t mean they are actually going fishing and it also doesn’t mean they can openly carry a firearm wherever they want. If that were the case, law enforcement officers would be powerless to detain and speak with an openly armed individual who was approaching a school, church, or any other place where people gather merely because they were carrying a fishing pole along with a firearm.

“When somebody engages in that type of highly suspicious behavior, in this day and age with active shootings a regular part of our lives, the law doesn’t require law enforcement officers to wait until a person starts shooting to take action,’’ he said. “The law allows us to do exactly what these deputies and officers did – approach the armed person and detain them so we can figure out what’s going on and whether the person should be released or arrested.”