*Update below the original story
St. Louis Circuit Attorney Kim Gardner has charged Mark and Patricia McCloskey for protecting themselves against a violent mob in June. The couple, who armed themselves after a mob broke through the private gate and trespassed onto private property while reportedly yelling threats, were charged with brandishing a weapon, a class D felony that could bring prison time and a $5,000 fine. The mob was going to protest city mayor Lyda Krewson in front of her home, except that Krewson doesn’t live on the McCloskey’s street.
1/ Statement from Circuit Attorney Kimberly M. Gardner – Today my office filed charges against Mark and Patricia McCloskey following an incident involving peaceful, unarmed protesters on June 28th. Full statement below: pic.twitter.com/zPucQ3MHs5
— Circuit Attorney (@stlcao) July 20, 2020
2/ It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest, and while we are fortunate this situation did not escalate into deadly force, this type of conduct is unacceptable in St. Louis.
— Circuit Attorney (@stlcao) July 20, 2020
I wrote of the couple’s handling the night of the incident here (and later here). As I included then, it’s weak sauce to act like marching through residential neighborhoods isn’t an escalation of tactics we’ve seen the past month where daytime protests diminish into nighttime riots (and sometimes in broad daylight, too) with businesses looted and burned, people attacked, and threats of going to people’s homes — this all coupled with Democrats’s new “defund the police” policy. Just earlier in my hometown, not more than a 15 minute drive from that stately city CWE home seen above, people had the hell beaten out of them over a statue. Retired police captain David Dorn was murdered minutes from the McCloskey’s home, just a short trip down Kingshighway.
An interesting note:
Watkins told reporters the pistol Patricia McCloskey used was only a prop from a federal trial that the couple used in a case. Both of them are attorneys.
A source familiar with the investigation told 5 On Your Side that police did not find any ammunition at the McCloskey’s home and the rifle was not loaded when they seized it.
As I understand it, which the NBC affiliate mentions, Gardner has to prove that the McCloskey’s were even capable of lethal force, which if the guns weren’t loaded and they had no ammunition in the house for said guns, they weren’t capable of defensive lethal force using a firearm in the first place. A reminder: Missouri is a castle doctrine state, meaning you have no duty to retreat if someone trespasses into your home with intent to do you harm. Missouri’s castle doctrine is a bit broader than that of other states as it includes private property (like your vehicle, for instance), not just your home or “If the person is in any other location such person has the right to be.” The actual law [bold my emphasis]:
2. A person shall not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:
(1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony;
(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person; or
(3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual, or is occupied by an individual who has been given specific authority by the property owner to occupy the property, claiming a justification of using protective force under this section.
3. A person does not have a duty to retreat:
(1) From a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining;
(2) From private property that is owned or leased by such individual; or
(3) If the person is in any other location such person has the right to be.
4. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.
5. The defendant shall have the burden of injecting the issue of justification under this section. If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.
In order to see these charges to a conviction, Gardner will be forced to address the lawlessness of the mob. Honestly, I don’t see how this holds up in court, given that violent riots preceding the McCloskey incident saw four cops shot and one retired cop murdered (again, minutes from their home), in addition to arson and businesses damaged. Of course people are going to think trouble is coming when a mob busts down a gate and trespasses into a clearly marked as entirely private community. I’ve seen the idea posited that the McCloskey’s can’t cite castle doctrine as it cannot be interpreted to mean lethal force may apply just because someone stepped on your lawn — the mob didn’t just step on the McCloskey’s lawn, they broke through a gate before trespassing into an entirely private neighborhood on a private street that the McCloskey’s and other street residents pay themselves to maintain. Thus, why it’s a private street. I’ve discussed my hometown’s odd history of private streets and gated communities before on air; you can listen in the below linked videos from the video simulcast of my radio program.
I spoke with the Missouri AG Eric Schmitt over a week ago on my radio show:
Here is my interview last week with Mark McCloskey, who was anticipating being charged:
Missouri Governor Mike Parson, who co-sponsored the state’s castle doctrine expansion while a member of the state legislature, says he’d likely pardon the McCloskeys if convicted.
*UPDATE: Missouri Attorney General Eric Schmitt filed a brief in defense of the McCloskeys tonight in a bid to dismiss the charges. Schmitt calls Gardner’s move “a highly publicized criminal prosecution of Missouri citizens for exercising these fundamental freedoms ” and accuses Gardner of trying to intimidate Missourians away from using their Second Amendment rights:
Attorney General Schmitt Files Brief Defending Missourians’ Second Amendment Rights
Following earlier charges issued, Missouri Attorney General Eric Schmitt filed a brief in the case of Mark and Patricia McCloskey supporting the Castle Doctrine law and seeking the dismissal of those charges recently filed by the Circuit Attorney’s Office.
“The right to keep and bear arms is given the highest level of protection in our constitution and our laws, including the Castle Doctrine. This provides broad rights to Missourians who are protecting their property and lives from those who wish to do them harm,” said Attorney General Schmitt. “Despite this, Circuit Attorney Gardner filed charges against the McCloskeys, who, according to published reports, were defending their property and safety. As Missouri’s Chief law enforcement officer, I won’t stand by while Missouri law is being ignored – that’s why I entered this case to seek its dismissal, to protect the rights of Missourians to defend their property under Missouri’s Castle Doctrine.”
The brief supporting dismissal reads, “The right to use firearms to defend one’s person, family, home, and property has deep roots in Missouri law. Self-defense is the central component of the right to keep and bear arms, which receives the highest level of protection from the Missouri Constitution. Missouri’s statutes specifically authorize Missouri citizens to use firearms to deter assailants and protect themselves, their families, and homes from threatening or violent intruders. A highly publicized criminal prosecution of Missouri citizens for exercising these fundamental freedoms threatens to intimidate and deter law-abiding Missouri citizens from exercising their constitutional right of self-defense.”
The brief finishes with, “On behalf of all Missourians who wish to exercise their right to keep and bear arms in self-defense of their persons, homes, families, and property, the Attorney General respectfully requests that the Court dismiss this case at the earliest possible opportunity.”
The AG tweeted:
St. Louis prosecutor Kim Gardner is engaged in a political prosecution.
I entered the case seeking a dismissal.
As AG I have a duty to protect the fundamental rights of all Missourians including the right to keep & bear arms in self-defense of one's person & home.
— Eric Schmitt (@Eric_Schmitt) July 21, 2020
MORE – TUESDAY: I spoke with MO AG Eric Schmitt, who defended the McCloskeys. Hear what he had to say here.