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SMERCONISH

Michael Smerconish Evaluates the Root Causes of the School Shooting in Florida and Discusses if it was an Issue of Gun Control/Availability or Lack of Data Dissemination; Amy Chua Explained the Premise of Her Book and the Fact that Humans are Tribal in Nature and Compared that to National and Political Identities; Sue Jeffers and Andy Cilek Discuss Freedom of Speech Regarding Dress at Polling Places. Aired 9-10a ET

Aired February 24, 2018 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[09:00:00]

(COMMERCIAL BREAK)

MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. Last week as others focused on gun policy, I suggested here a corresponding cause for our national tragedy. And today in light of new information let me say it flat out, the Florida school shooting was an epic intelligence failure. It should have been stopped. It never should have happened.

In this technological world of Apple and Google, Facebook and Amazon, better management of data by law enforcement needs to keep us safe from mass killings. And better integration of that which was in a variety of data bases should have kept us safe from this guy.

I hate to say his name, but I need to in order to make my points. Nikolas Cruz was not living off the grid like the Unabomber Ted Kaczynski far from it. He was totally plugged in to his community, to law enforcement, and to social media. There was a staggering amount of seemingly searchable information predicting his future path.

Consider just some of the electronic bread crumbs that he left behind. The Broward County Sheriffs Office received 23 calls about this one guy over 10 years starting when Cruz was just nine years old. That data was all recorded. Since 2010 law enforcement had to respond to his house 39 times, or in a classmate's words, almost every other week.

And again records were kept. The most serious warnings started in February of 2016 when an anonymous caller alerted police that the killer threatened on Instagram to shoot up the school. And Cruz posted pictures of himself with a gun, another electronic marker. Seven months later a peer councilor reported that the killer possibly ingested gasoline, wanted to buy a gun, and attempted to commit suicide by cutting himself.

Day's later an investigator for Florida's Department of Children and Family's ruled him a low risk. Still DCF had a thick file on this guy. That's more data which could have been integrated. And later that month the family that initially took the killer in after his mother's death called police to report a fight.

(BEGIN AUDIO)

UNIDENTIFIED 911 SPEAKER: 911 Emergency how can I help you.

KIMBERLY SNEAD, FOSTER MOTHER OF NIKOLAS CRUZ: Yes there was a fight in my house with a kid and my son.

UNIDENTIFIED 911 SPEAKER: OK.

SNEAD: I talked to him and that's why he left the house but I need a - someone here because I'm afraid he comes back and he has a lot of weapons.

UNIDENTIFIED 911 SPEAKER: What kind of weapon ma'am?

SNEAD: I need I ask my son, what kind of weapon did he get? That he's going to get? A Remington.

UNIDENTIFIED 911 SPEAKER: And who did this?

SNEAD: Nikolas Cruz, its not the first time he's put a gun to somebody's head.

(END AUDIO)

SMERCONISH: There's more, the family also revealing this disturbing detail.

(BEGIN AUDIO)

SNEAD: They also dig in the back yard because he knew he was not allowed to bring it here and we found that he did, a size for the box. So he was going to burry the gun there.

(END AUDIO)

SMERCONISH: The next day a tipster from Massachusetts called the Sherriff's Office to report that Cruz was collecting guns and knives. Telling them he will kill himself one day and believes he could be a school shooter in the making. On social media Cruz posted comments like, I want to die fighting, and I want to shoot people with my AR15.

Yet more electronic footprints, and then there was his behavior at school. According to the "Miami Herald" teachers and other students said that he kicked doors, that he cursed at teachers, that he fought with and threatened classmates, and brought a backpack with bullets to school, more markers.

Student Samantha Fuentes who was injured in the shooting said students used to joke about Cruz being the next school shooter. Also reports that an investigator with Florida's Department of Children and Families had previously warned the state of Cruz's intentions to buy a gun after his 18th birthday. And then as predicated in February of 2017 he purchased the AR15 that he used to kill those 14 students and 3 facility members.

[09:05:00]

The transaction was perfectly legal but you'd think that a background check should be able to detect all these prior warnings. Last September a Missisisppi bail bondsmen flagged for the FBI and YouTube comment from a Nikolas Cruz saying I'm going to be a professional school shooter.

Now the "Washington Post" reported that a NEXIS search revealed only 22 so named individuals. That's another searchable database. And still they didn't stop him. And finally the FBI admits that they failed to act on a January 5 phone call in which according to the transcript yet another unidentified caller told the FBI she feared Cruz was about to explode and was capable of quote getting into a school and just shooting the place up. I just want to get it off my chest in case something does happen and I do believe something's going to happen.

After receiving that call, an FBI employee discussed the tip with her supervisor and concluded there was not eminent threat. The case was closed with in an hour. The information was never passed on to the FBIs Miami's field office. And this is not even a full accounting that I'm giving you.

It's inexcusable that all this data wasn't integrated. And I know some of you are listening, your watching and your saying we'll there are civil liberties risks here. I get it. But the protection of American's of all age's demands better data management about those who pose a gun risk. When any of us makes a rudimentary Amazon or Google search, we trigger all sorts of algorithms that make it hard for us to evade commercial suitors.

Why shouldn't law enforcement have the same tools at their disposal? We were a keystroke away from catching this guy. Instead 17 are dead; it is time to work smarter not harder. I want to know what you think. Go to my web site its smerconish.com. Answer this question, the Florida's school shooting was more a failure of data integration or gun policy. I'll give you results later in the show.

Now with all those missed signals sources are also telling CNN it wasn't only Broward County Sheriff's Deputy Scott Peterson who had not entered the building as the shooting was unfolding. Three other Broward County Deputies were also outside the school shielded by their cars and had not rushed in by the time that other officers arrived.

Joining me now is Pete Blair, he's a Criminal Justice Professor, and the Executive Director of the Advance Law Enforcement Rapid Response Training Center at the Texas State University. Dr. Blair you know that these men are essentially being challenged and being accused of cowardice. Is there any benign explanation as to why they didn't more aggressively purse the killer when it was all going down?

PETER BLAIR, CRIMINAL JUSTICE PROFESSOR: I always try to give officers on the scene the benefit of the doubt.

SMERCONISH: Me too.

BLAIR: We're not there we don't see exactly what they see is happening. And we really want to give them that benefit of the doubt. And we still don't have all of the information in. Occasionally there could be a situation where an officer may choose to enter right away if the next officer was only a few seconds behind then two of them could enter as opposed to one. But in general I haven't seen anything now that tells me why they wouldn't have entered.

SMERCONISH: Well might it be that Scott Peterson, I'll use him as an example, knew he was out gunned? That this guy had an AR15 that he could hear the type of weaponry and he had a skill set in that regard. And that he had a simple hand gun.

BLAIR: Well he would be at a disadvantage if he's facing a rifle with a hand gun. But he's not as much of a disadvantage as the people who are inside the building that are completely unarmed.

SMERCONISH: True.

BLAIR: He is there with a gun; he has body armor and training.

SMERCONISH: So I keep reading this week as I try and become more knowledgeable about appropriate police response. In fact I'll put the "New York Times" up as an example of what I'm about to say. The shooting at Columbine High School in 1999 fundamentally changed police protocol amid fears that a gunman or gunmen equipped with semi automatic weapons would be capable of killing dozens of people in a matter of seconds.

Officers their patrol cars now stocked with supplies like rifles, ballistic helmets, and trauma care kits. Key words are now trained to seek gunmen urgently even if they have no back up or only limited information. Does that represent the current protocol for law enforcement?

BLAIR: Yes it does. When we teach police officers to respond to these events we teach them the first thing they should do on scene is stop the killing. So if you arrive, you see kids coming out of the school screaming, you hear gun fire you want to proceed directly toward that attacker and try to stop them from shooting anybody else.

SMERCONISH: So the fact that there was a deputy on premise with a firearm who didn't go in, does that mitigate against the argument that we should be arming school personnel?

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BLAIR: I don't know that necessarily directly relates to the school personal argument. I'd be interested to see this officer what kind of training he had had when the last time was that he had training. And try to find out from his point of view why he chose not to go in.

SMERCONISH: Alright I want to switch gears. I want to talk not about law enforcement. I want to talk about the citizenry. God forbid any of us should find ourselves in an active shooting situation. The words I keep hearing are run, hide, fight. I know you say it differently. What's your mantra?

BLAIR: Sure, we say avoid, deny, defend. Because we want action words in there that people are doing things.

SMERCONISH: Meaning what?

BLAIR: So meaning that we want you to first start by avoiding the attacker if that's possible. Get away from the person who's trying to kill you. If for some reason you can't do that you're in the school, you're in a classroom, you hear gunfire in the hallway, you're worried if you go out there you might be shot.

The next best option is to deny access to your location. Close, lock the door, barricade it, be out of sight of the door that sort of thing. And as a last resort if you end up in close proximity to that person the next best thing to do is to defend yourself. That person is trying to murder you; you should not let them do that easily.

SMERCONISH: Let me ask some practical questions. Use the elevator or don't use the elevator?

BLAIR: Generally I would say don't use the elevator. You don't want to be trapped in a box that doesn't give you options of where you can go and what you can do.

SMERCONISH: Pull a fire alarm, don't pull a fire alarm?

BLAIR: I would say don't pull the fire alarm. Particularly in a case where you, apparently the school had a fire drill earlier in the day, you don't want everybody to spill out of the classrooms into a hallway where the shooter might be. So you don't want to pull it.

SMERCONISH: Play dead, don't play dead?

BLAIR: Not a fan of playing dead. There could be situations where playing dead might work momentarily. But what we see again and again in these situations is the shooter comes in, they shoot the people who are up and then once the people who are down they shoot the people who are down to make sure their dead. And so we commonly see people who are playing dead get shot while they are playing dead.

SMERCONISH: The final question. Use the cell phone, don't use the cell phone?

BLAIR: You can use the cell phone but I wouldn't use the cell phone until you're out of the danger area. So the most important thing is that you start taking actions to protect yourself immediately. Once you've gotten yourself out of immediate harms way then you can get on the phone and notify police and authorities and that.

And then I wouldn't say you want to stay on the phone doing social media and that sort of thing. You want to keep your head in what's happing here and paying attention to what's happing here as opposed to being distracted by something else.

SMERCONISH: And from a defense standpoint, I've heard you say it before through any means necessary. Dr. Blair thank you so much for being here.

BLAIR: Thank you.

SMERCONISH: What do you think? Go to my website smerconish.com answer the poll question of the day, results later this hour. The Florida school shooting was more, I think it's both. I'm asking you which was it more? A failure of data integration or gun policy, what are your thoughts? Tweet me @smerconish, go to my Facebook page I'll read some throughout the course of the program. I'm fired up today as you can tell, really angry about this issue.

Smerconish not sure, what if the FBI or local law enforcement had gone in and seized his guns, what would have been the due process considerations? What would have been the political ramifications? What about the civil liberties of the family that took him in? What about a complaint for making terroristic threats that would warrant a full scale investigation that would tie together all the data that I referenced in my opening commentary?

That's what I'm advocating. This is not a guy who should have had access to weaponry by about 20 different markers. If I had the time I'd have laid them all out for you, it's inexcusable. And I'm not being critical of law enforcement. I don't think they have the tools.

I don't think we've given them, we give them all the weaponry from Iraq and Afghanistan, we give them the MRAPs. We need to give them some more lap tops and some more searchable data. Up ahead fear and loathing on both sides. Could the gun debate tear this country apart?

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[09:15:00]

SMERCONISH: Hey there angry words being thrown around in the wake of Stoneman Douglas High School. On Thursday NRA spokesperson Dana Loesch said this in a speech at CPAC, the conservative conference.

(BEGIN VIDEO)

DANA LOESCH, NRA SPOKESPERSON: Many in legacy media love mass shootings. You guys love it. Now I'm not saying that you love the tragedy. But I am saying that you love the ratings. Crying white mothers are ratings gold.

(END VIDEO)

SMERCONISH: On Friday liberal provocateur Michael Moore then tweeted this, quote the NRA is a terrorist organization. The media should speak of the NRA in the same way they do ISIS, total ISIS inspired deaths in U.S. 79 thanks to the NRA and the politicians they buy. We've had 1.2 million American's gun deaths since John Lennon was shot dead in New York City #nrakillskids. Joining me now is David French he's a Senior Writer for "The National Review." He fears that the loathing on both sides of the gun debate could sever the ties that unite us as a nation. His most recent piece is called, "The Gun Control Debate Could Break America." Hey David I find each of them that we just showed reprehensible. Your thought?

DAVID FRENCH, SENIOR WRITER THE NATIONAL REVIEW: Well right absolutely. We've seen reprehensible rhetoric on both sides since the Parkland shooting. So we've seen people telling Americans who support gun rights that they have blood on their hands, when they are desperate to stop school shootings too.

They have different ideas for how to do it but their called murders, they're told they have blood on their hands, and then we see this rhetoric that says that the mainstream loves mass killings when we know that is not the case. And we've seen people mocking the kids who are the survivors of the Parkland massacre accusing them as being plants and trolls and being paid actors.

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So what you're seeing is this unbelievably vicious rhetoric and it's being injected into a political environment that's already toxic. It's not like we had a healthy political discourse in this country before this occurred. But now it's being escalated and it's being escalated over a life and death issue as opposed to things like net neutrality or tax reform, which are much lower steaks compared to this. And it's putting strains on the system.

SMERCONISH: And how far do you fear those strains might take us?

FRENCH: Well you know it really depends on what happens next. This a new cycle that is persisting for a lot of very important reasons for day after day after day. We're heading into an off year election cycle. We're heading into an election cycle where you're going to have more redirect around this issue and around other issues.

And again we can not divorce this from the overall context. And we can't divorce it from other overall trends such as the fact that we tend to live more in like minded enclaves then we have in recent memory. So that we tend to live and work and live our lives with people who agree with us, which means we have less capacity to understand others.

And again all of this is pulling at the fabric of this country. It's pulling and tugging and pulling and you can't keep doing that forever.

SMERCONISH: I give Senator Rubio credit for going into the lion's den for appearing at that CNN Town Hall Meeting earlier this week. Here's just a snippet of what transpired.

(BEGIN VIDEO)

REP. MARCO RUBIO, (R) FLORIDA: Your comments this week and those of our President have been pathetically weak. I'll repeat what I said. And what I said - then I'm going to tell you what we're going to do. (END VIDEO)

SMERCONISH: David how does that fit into your analysis? How is that indicative of what you see going on out there?

FRENCH: Well and let's keep in mind that was one of the more civil moments. I mean we actually had one of the kids from Parkland comparing him, Marco Rubio, to the shooter himself. We had people shouting at Dana Loesch that she was a murderer. So what that tells me is that there is this very deep rage, this very deep rage and some of those things are just unacceptable to say. Even if you're very angry you still have moral responsibilities to treat other people with dignity and respect.

And so when you're seeing that kind of imagery, and I guarantee you there millions of Americans who agree with Marco Rubio who are seeing him treated in that way and their getting angry, and their getting concerned.

And then when you hear wild cheering for things like banning all semi automatic rifles in the United States that begins to tip the balance again from a standpoint of I'm open minded to discussing creative solutions to oh you're against me, the agenda here is confiscation and the polarization just keeps continuing. We're not in a mode of persuasion anymore we're in a mode of mobilization and that creates increased tension.

SMERCONISH: What frustrates me is that so many are speaking past one another in an opening commentary that I delivered here that I hope you heard. I mean I think there's something very reasonable out there that we all should be able to agree on. And that is a better system of data integration to prevent guys like this from getting access to weaponry.

FRENCH: Well right and I've been advocating something called a gun violence retraining order that some states are experimenting with. And under a gun violence restraining order a person close to a troubled individual can come forward to a local court with evidence that this person is a danger to themselves or others and they can secure a temporary order allowing the Sheriff or a police department to seize that persons weapons.

And that's a situation under the facts of this case, a gun violence restraining order could have been very, very useful. So there are solutions that people are talking about. And there are some things that can be done in the short term to address this contagion of mass killings. But it's getting lost in the overall tribal conflict.

SMERCONISH: No doubt. David thank you so much, I appreciated what you wrote.

FRENCH: Thanks for having me I appreciate it.

SMERCONISH: Are you hitting my website? Are you going to smerconish.com and answering this question? The Florida school shooting was more, because I think it was both, which was it more, a failure of data integration, or gun policy? Let's see what you're saying via Twitter and Facebook. What do we have Katherine? We are very divided on social media. When you go to your kids soccer games we are all unified Americans unless someone brings up politics then it could get ugly.

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Yes it's true and you've heard me say before Brian Quick perhaps never before have we been afforded so much choice. So much choice in the number of television channels you could be watching right now. Or radio with both satellite radio and terrestrial radio and certainly the internet and yet so few of us seem to exercise that choice.

You've got to turn the dial, but not now. Up ahead may know her from the Tiger Mother debate, now Amy Chua is taking on political tribes in America.

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SMERCONISH: Identity politics they've seized the American

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left and right just take a look at our gun debate. Today, the only thing that seems to unite desperate groups that we all feel threatened - white, black, Latino, Asian, men, women, liberals, conservatives. So how do we rediscover a national identity that transcends our political tribes? Amy Chua, the Professor of Law from Yale, addresses this in her brand new book, "Political Tribes: Group Instinct and the Fate of Nations."

Amy, it's nice to have you back. Here are the very first words in your book. "Humans are tribal. We need to belong to groups. We crave bonds and attachments which is why we love clubs, teams, fraternities and family. Almost no one is a hermit even monks and friars belong to orders. But it is not just an instinct to belong; it is also an instinct to exclude." Let me tell you somebody who gets the thesis of your book I believe, Donald Trump, because I think you explain his political rise. Is that fair?

AMY CHUA, AUTHOR AND YALE LAW PROFESSOR: Yes, so first of all, we have to realize that it is biological. Human beings are just tribal, and once we connect to a group, we want to cling to it and defend it no matter what. Just think of how you feel about your favorite sports team. You don't care what anybody says about that.

And President Trump has done a great job actually presenting himself and relating to people as kind of a part of a cultural tribe. He's really tapped into a lot of people who feel like they talk like him, they get blamed for not being politically correct like him, they eat McDonald's like him. And every time he gets in trouble and a lot of elites think, oh, now that will bring him down, they feel like you know what, he is our guy. He may be awful, but he is our awful and we'll stand by him which is why you see his ratings stand pretty strong despite what seems like scandal after scandal. SMERCONISH: You know, Michael Wolf's book "Fire and Fury" got so much

attention and there was an a anecdote that you made me think of where Donald Trump, not yet President, is asked by a foreign model what is white trash and he said, "Oh, they're people like me only I've got money."

CHUA: Yes, but that didn't seem to really offend people. The problem is that I think that elites in this country don't really understand the rest of the country very well. And going back to your previous segment, the problem is that we are so divided right now, we have these terrible problems that we need to address. You have these great facts that you are bringing out. Nothing is going to happen. Why?

SMERCONISH: Oh boy.

CHUA: Because as soon as a tragedy happens, mourning is not even over and people will instantly go into their tribes and they will start demonizing the other side and the kind of Trump/anti-Trump thing. The same thing is happening. People are -- it's almost like you view people on the other side as not Americans anymore. And it used to be that people we disagreed with, we could fight with them, you'd have arguments, but they were still Americans.

At this point it is almost like people on the other side of the political divide are enemies, killers, immoral people. And I've been studying democracies around the world for 20 years. And the problem is that we are now starting to see in the United States dynamics that we thought were really just more like developing country dynamics. So the stakes are very high and I think we all need to hold ourselves to a higher standard.

SMERCONISH: Let me say that the book is not just about tribalism in a domestic sense. As a matter of fact, most of your -- many of your most salient points, I think, are discussions of what has blinded us from a foreign policy standpoint. Offer the CliffsNotes version of that.

CHUA: The United States, we have had such success with assimilating our people. Germans, Irish, Italians, they all became Americans in one generation. So when we go in a country like Iraq, we think democracy is going to be the great panacea and we underestimate the potency of tribalism. We think Sunnis, Shiites, Kurds, let have elections and they will all come together. Big mistake. So I argue in the book that our blindness, our failure to take seriously the importance of the group identities that matter most to people on the ground in the countries we're supposedly trying for help are blind to these identities and explain some of our greatest foreign policy disasters going back to Vietnam, to Afghanistan, to Iraq, to Venezuela.

SMERCONISH: We've been able to regard ourselves as Americans first. We go into these countries thinking in the end they are all Iraqis, but they are not. They are Sunnis, and Kurds, and so forth. Are we at risk in the United States given the massive demographic shift now under way of losing that super group status as you put it in the book? CHUA: This is the most important thing. America has always been

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special in this important sense. We are a country with a very strong overarching national identity. Americans. But at the same time, we've always allowed subgroup identities to flourish, you know, Irish- American, Croatian-American, Italian-American. This is a country where you can be Japanese-American or Libyan-American and intensely patriotic at the same time. What distinct distinguishes us from a country like Iraq? Our strong overarching identity.

And right now that is really under threat and it's coming from both sides. We're constantly trying to finger point and say no, it is their point. But I think both sides are contributing to this breakdown. What we need to get -- we need to get back to what makes us special which is we should allow individual identities to flourish. Even in the gun control debate, in different ethnic identities, different racial identities, but we can't lose what connects us all as Americans.

Otherwise we will go the way of Libya. I mean Libya is another a multiethnic nation just like us; there are 140 different tribes. Why is that country now a failed state? Because that overarching Libyan identity was too weak. It was a colonial construction, it didn't mean anything. And we're not like that. We have always had -- it is baked into our constitution. We have an ethnically and religiously neutral national identity. Anybody who shares our values can be an American and I with just have to get back to what made this country great.

SMERCONISH: I'm worried as I read your book, I'm very concerned. Let's bring back civics in high school curriculum. That could be a starting point. Maintain those bonds that hold us together. Amy, again, you've done it. It's provocative. Thank you for being here.

CHUA: Thank you for having me.

SMERCONISH: Up ahead, should a t-shirt keep you out of the voting booth? The Supreme Court of the United States may decide it is improper political speech.

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[09:40:00]

SMERCONISH: Question. Should you be allowed to wear whatever political message you want to a polling police? That's the question coming to the Supreme Court of the United States on Wednesday when justices hear Minnesota Voters Alliance versus Mansky. It's a case that pits free speech rights against a right to vote without interference or distraction.

The case involves a Minnesota law that prohibits voters from wearing any political items to the polls; no "Make America Great" hats, no "Feel the Burn" tee shirts, no Pink (inaudible) hats, no Tea Party style revolutionary regalia. Minnesota voter Andy Cilek was temporarily prevented from voting when he showed up at the polls wearing a "Don't Tread on me" Tea Party t shirts and a button that said, "Please I.D. me." He says the law forces voters to choose between their right to free speech and their right to vote. Andy Cilek joins me now. He's Executive Director of Minnesota Voters Alliance. It's a nonpartisan organization that promotes voter I.D.s and also joining me is Sue Jeffers, a former Minnesota election judge, both are petitioners in this case. So Andy, what happened, walk us through it briefly.

ANDY CILEK, EXECUTIV DIRECTOR OF MINNESOTA VOTERS ALLIANCE: Thank you for having me Michael. Back on Election Day in 2010, I went to vote at my local polling place, a church, and I was wearing at that time a t-shirt that said the words Tea Party Patriots. And it said Don't Tread on Me underneath that. And I simply went in by myself to vote peacefully and I was asked by the head election judge, almost immediately, that I needed to either remove my t-shirt or I need to exit the polling place.

SMERCONISH: Do you have the shirt and if so can you hold it up?

CILEK: I do. I brought it with me here. This is the shirt that I was wearing on Election Day in 2010.

SMERCONISH: Sue, Minnesota is not unique in this regard.

SUE JEFFERS, FORMER ELECTION JUDGE: No, they there are nine other states that have a similar overbroad ban just like Minnesota does.

SMERCONISH: And the argument is the state would say we need this for order. We want people to vote, there to be a nice semblance, a nice process, and most importantly not intimidation. I know you don't agree with it, Sue, but is that at least the logic of it?

JEFFERS: Yes, and of course we want order at the polling place. The only disorder that we're seeing at the polling place is the election judges calling out people and saying wait a minute, what you are wearing doesn't meet the criteria to be allowed to vote.

SMERCONISH: Andy, I know you also had a button Please I.D. Me. I understand that you are a proponent of the need for voter identification. The trial judge said that that perhaps was intimidation of people, they might think, uh-oh, I'm going to be subject to an identification if I go up and vote. You don't buy that logic I know.

CILEK: Right. No, I don't buy that logic. But the point is, Michael, is that on Election Day when I was turned away from voting, I was turned away for one reason. And that is because my t-shirt said Tea Party Patriots. It had nothing to do with any buttons that I had on or didn't have on.

JEFFERS: It had nothing to do with a candidate, it had nothing to do with an election issue. That is the important part of this case.

SMERCONISH: And fair to say, Andy, it's not that you were singled out for a conservative ideology or even a liberal ideology, but rather that it was politics or ideology of any kind.

CILEK: You know that is a great question. And it is really hard to tell. I think it comes down to one of three reasons. Either the

[09:45:00]

election judge felt like they had to be the arbiters of free speech or they felt offended by my t-shirt, or they took advantage of the overbroad statute and they were politically motivated to suppress my vote.

JEFFERS: And do you understand, Michael, that in some cases, there were people -- there was one -- a college student in Colorado who was wearing an M.I.T. shirt and he was turned away because they thought that the M.I.T. stood for Mitt Romney.

SMERCONISH: I know, I know.

JEFFERS: There was a human (ph) who -- who had an Alaska souvenir t- shirt on and she was turned away because she thought that she was supporting Sarah Palin. It is an election judge with an arbitrary -- any discretion an election judge can turn you away.

SMERCONISH: By the same token -- look, I'm on your side of this. I think it is ridiculous to have let's call it a dress code for voting. We need more people voting in this country. I think the number is like 44% of those eligible didn't vote in the last election. Can you imagine? But here is something that I believe does have merit and I offer this from my days as an assistant Republican Committee man when I was 18 years old. The court has, in the past, embraced a barrier for electioneering. I think 100 feet from the polling place. That has merit Andy, you agree with me right? You don't want the electioneering too close, but when somebody shows up to vote, if they're wearing a shirt, let them vote. Andy, you get the final word.

CILEK: Right, I think that most states have laws regarding campaign materials 100 feet from the polling place and inside the polling place. But what we're talking about here in our lawsuit, we're talking about political messaging that is not campaign related. In other words, it doesn't say vote for Trump or vote for Hillary. So anybody can be turned away. There was someone in Texas turned away with a Dallas Cowboys shirt because there was a referendum on the ballot. Personally as a Minnesota Vikings fan, I'm offended when I see somebody wearing a Dallas Cowboys shirt, but they certainly have everyone right to wear that shirt when they go for vote.

SMERCONISH: Let me just say on behalf of the world champion Philadelphia Eagles, the Cowboy voter, I might have punted him too. I'm kidding. Thank you guys. Good luck. I appreciate you being here.

JEFFERS: Thank you.

CILEK: Thank you.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments. Katherine, what have you got? Smerconish, went to vote one time and had a voter question whether our

outdated bumper sticker was inappropriate as it sat in the parking lot. Really? What difference does it make that the point? Francis, God bless you for going out and voting. Let's get more people to do it if they are wearing a thong for crying out loud.

We will give you the final results on the survey. The survey question you can hurry up and vote one more time. The Florida school shooting, was it more -- again, I want to make this clear, I think it is both. But was it more a failure of data integration or gun policy? Results in a sec.

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[09:50:00]

SMERCONISH: All right. Here we go. I don't know the outcome, how did you vote on the survey question at smerconish.com? Survey says, the Florida school shooting was more a failure of data integration or gun policy? What do we got? Show it to me. Gun policy -- 54%. 12,419 votes. Look, the trial lawyer in me is bummed because in my opening commentary I said its data integration. And I am -- I'm just fearful that we're going to argue until the cows come home about bump stocks and assault weapons and age and that there won't be any monumental change and that the solution, not to all of our problems, but a step in the right direction.

Because I want those other things, but a step in the right direction is staring us in the face, is data integration. You know why I think that argument failed? Maybe my arguing but also it's just not sexy. Like it's sexy to say oh, get rid of assault style weapons. And then you got me coming along, you know, a bald, bespectacled man saying it's about data integration. But it is. All right. Katherine, what do we got? Damn it.

Smerconish, sir, you often lament about issues of division and then pose a black or white poll question such as this. Am I dividing? Spicertune '63, I'm trying to unite us around something we should all agree on. This guy should have been caught. He should have been prevented from having a weapon. There was a plethora of information out there about him that good data integration would have caused him to be flagged and stopped!

Next. What do we have? How is that divisive? I'm trying to bring about a solution. It was the guns, Michael. Stop the BS. I've already addressed that, what's next? Of course it's the guns but it's also him getting a gun. He shouldn't have been able to get a gun.

All the data in the world integrated at your finger tips won't help if there are no laws or policies in place that let you act on the data. Both are important but slight edge to gun policy. Betsy, I respect that. I think that's a valid observation. Let's do both.

Another one if we have time. I think we do. Smerconish, The facts that there was a massive failure by the police and FBI doesn't change the fact military tile weapons of war should not be on our streets. SM, I don't

[09:55:00]

want military-style weapons on my street. That's a given. Now do you really think in a country with 300 guns out on the street already that we're getting rid of them? Let me just talk turkey to you. We're not. We're not. So can we at least this time do something practical and better integrate data and keep the next Nikolas Cruz away from a gun? That's what I'm trying to bring about. Anyway, thank you guys. Follow me on twitter and Facebook and check out my website @smerconish.com.

Hey, I'll leave that poll question up and hope that the results flip. See you next week.

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