Missouri Attorney General Seeks to Dismiss Charges Against Couple Who Defended Home
“The right to keep and bear arms is given the highest level of protection in our constitution and our laws, including the Castle Doctrine, which provides broad rights to Missourians who are protecting their property and lives from those who wish to do them harm.”
Monday, St. Louis Circuit Attorney Kim Gardner filed charges against the couple filmed flashing firearms to protect their property from a looting mob. The McCloskeys were charged with “felony unlawful use of a weapon.”
Later Monday, Missouri’s AG moved to have the charges dismissed saying, “The right to keep and bear arms is given the highest level of protection in our constitution and our laws, including the Castle Doctrine, which provides broad rights to Missourians who are protecting their property and lives from those who wish to do them harm.”
Fox News has more:
Gardner declined to discuss to why Missouri’s “castle doctrine,” a law that justifies deadly force for those who are defending their homes from intruders, didn’t apply.
Within hours of the ruling, Missouri Attorney General Eric Schmitt filed a brief seeking to dismiss Gardner’s charges against the McCloskeys on the grounds that their Second Amendment rights are being violated.
“The right to keep and bear arms is given the highest level of protection in our constitution and our laws, including the Castle Doctrine, which provides broad rights to Missourians who are protecting their property and lives from those who wish to do them harm,” Schmitt said in a prepared statement provided to Fox News.
“Despite this, Circuit Attorney Gardner filed suit 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,” Schmitt said.
The brief filing says the attorney general “respectfully requests that the Court dismiss this case at the earlier possible opportunity.”
The McCloskeys have said they were defending themselves, with tensions high in St. Louis amid nationwide police protests sparked by the police custody death of George Floyd. The McCloskeys said that the crowd of demonstrators broke an iron gate marked with “No Trespassing” and “Private Street” signs and that some violently threatened them.
An attorney for the couple, Joel Schwartz, called the decision to charge “disheartening as I unequivocally believe no crime was committed.”
Also Monday, Missouri Governor Parson said he would likely pardon the couple:
Missouri Gov. Mike Parson told a radio host last week that based on the information he’s received, it’s likely he would pardon a white St. Louis couple if they are charged for brandishing guns during a racial injustice protest outside their mansion.
In an interview Friday on the Marc Cox Morning Show on 97.1 FM in St. Louis, Parson was asked if he would consider a pardon.
“I think that’s exactly what would happen,” Parson said. He later added that based on what he knows about the case, “I don’t think they’re going to spend any time in jail.”
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Comments
Common sense finally emerging from the madness. I hope this isn’t a one-off. The Obama-Soros mafia needs to be crushed.
Doesn’t that ejit Kim have a boss? I hope she is investigated for civil rights abuse, or something.
No, she doesn’t have a boss. She’s an elected official, so she answers only to the eejits who elected her, and only every four years.
Is there some way to boot that traitor out of office? Perhaps a civil lawsuit could make her life miserable. Maybe federal charges could be brought that keeps her too bust to do the job she is doing improperly so has to resign. All the people involved with bringing charges against those two patriots are EVIL.
She’s presently in a tight reelection fight on account of her failure to lock up bad guys. These charges are a political stunt to get the social justice retard brigade excited about voting.
Ms Garnder is a Circuit Attorney (City Level). As a City elected official she is subject to removal under § 79.240 of the Missouri Statutes.
Back on January 13, 2020, St. Louis Circuit Attorney Kim Gardner filed what she calls an unprecedented federal civil rights lawsuit, accusing the city, the local police union and others of a coordinated and racist conspiracy aimed at forcing her out of office. The lawsuit alleges civil rights violations as well as violations of the Ku Klux Klan Act of 1871. The police union released a statement calling the lawsuit “frivolous and without merit.”
Curious … I thought the SCOTUS declared the Ku Klux Klan Act of 1871 unconstitutional.
Coordinated and racist conspiracy, or maybe they all hate her because she’s terrible at her job?
Nope. It’s now known as the famous § 1983, and used all the time, especially because it overrides qualified immunity.
TITLE 18, U.S.C., SECTION 241
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;…
They shall be fined under this title or imprisoned not more than ten years, or both…
Ty.. I doubt she will face any repercussions because, umm, well, there is no need to spell it out.
Prosecutors have absolute immunity, so long as they’re functioning as prosecutors.
I’m not a lawyer, but I’ve heard of qualified immunity and sovereign immunity and read precedent however scarce and narrow that even the latter is NOT absolute. (It’s not Patron either) 🙂
Wrong!! The doctrine of Absolute Immunity does not override explicit Federal Statutory authority to prosecute someone civilly or criminally. You are referring to Absolute Immunity becoming Qualified Immunity if a prosecutor acts outside the scope of office.
RPC’s impose higher standards on prosecutors, although the misconduct is rarely acted on under the attorney disciplinary rules.
When you’ve conductucted yourself so egregiously as to have attracted the scorn of the Governor and the State AG, perhaps it’s time to Nifong her…..
There are reports that her office directed the alteration of state’s evidence. If she was involved, she can be prosecuted, and removed from office. If she was involved, I hope that does in fact happen.
This sounds like a felony level misconduct on the part of the prosecuting attorney:
https://www.ksdk.com/article/news/local/gardner-staffer-ordered-crime-lab-to-reassemble-patricia-mccloskeys-gun/63-be112149-d06c-4f54-a225-6545e74b5c2d?utm_campaign=snd-autopilot
Crime lab reassembled Patricia McCloskey’s gun: ‘readily capable of lethal use’
Assistant Circuit Attorney Chris Hinckley stated in charging documents that the gun was “readily capable of lethal use”
ST. LOUIS — The gun Patricia McCloskey waved at protesters was inoperable when it arrived at the St. Louis police crime lab, but crime lab experts reassembled it and wrote that it was “readily capable of lethal use” in charging documents filed Monday, 5 On Your Side has learned.
In Missouri, police and prosecutors must prove that a weapon is “readily” capable of lethal use when it is used in the type of crime with which the McCloskeys have been charged.
Crime lab staff members field stripped the handgun and found it had been assembled incorrectly. Specifically, the firing pin spring was put in front of the firing pin, which was backward, and made the gun incapable of firing, according to the documents.
Firearms experts then put the gun back together in the correct order and test-fired it, finding that it worked, according to the documents.
Crime lab workers photographed the disassembly and reassembly of the gun, according to the documents.
Patricia McCloskey and her husband, Mark McCloskey, have said the handgun Patricia McCloskey waved at protesters was inoperable because they had used it as a prop during a lawsuit they once filed against a gun manufacturer. In order to bring it into a courtroom, they made it inoperable.
. . .
While incapable of being fired at time of mob, I guess that when it didn’t work she could have field-stripped and corrected that according to experts. Years ago a judge ruled that no matter how elaborate and costly a modification any firearm that could be a!tered to fire fully auto…was a machine gun. Other such decisions can be and ave been created out of thin air.
The only potential misconduct here is in exactly how the Asst. prosecutor summarized the functionality of the weapon at the time of the incident.
The crime lab personnel noted that the weapon would not discharge when they initially attempted to test fire it. They investigated and discovered that the firing pin had been inserted backwards. They documented this and reassembled the weapon with the firing pin inserted correctly and it functioned. What can not be determined, categorically, due to the time delay in acquiring the weapon by the police, was whether the weapon was operable or inoperable at the time of the incident. So, without a high probability that it can be proven that the weapon was, in fact, operational at the time of the incident, this serious hurts the prosecution’s case.
But, this was never about securing a conviction anyway. That is why the prosecutor is pushing for the use of a diversion program.
Isnt it kinda dangerous to display an non operable weapon in front of a mob
Only if the bluff fails.
Waiving a gun she obviously didn’t know how to use was foolish regardless.
Her trigger discipline was non-existent. She watches too many police procedurals.
I also find it ironic that these two are standing there, with firearms, yet were the plaintiffs attorneys in a lawsuit against a gun manufacturer. I don’t know, but, suspect it was product liability because some low-life got sudden-onset lead poisoning from said firearm.
Yeah, the husband’s tactical positioning was a little better, but not much. I mean if your using a rifle to protect your home from a mob, the second story of your house or maybe the roof is the place to be. That way if the bad guys decide to rush you they have to break into the house and charge up the stairs to get to you, or if one of the hooligans pulls out a gun and starts shooting at you, then you’ve got the tactical advantage of an elevated position. I was never in the military, everything I know about infantry tactics I learned from watching Saving Private Ryan, but even I know that much.
Actually, you probably do not want to get trapped on the upper floor of a house. In combat you want as much mobility as possible. It is ill advised to take your tactical lessons from Saving Private Ryan. Using a fire arm to defend yourself is a very serious matter. Though I strongly encourage all to partake in their 2nd amendment rights, I also very strongly encourage everyone to take some very serious training to learn how to operate the weapon and use it in a tactically sound and legal manner. There are a number of decent courses out their. Get good training, and make a plan for the various use scenarios you find yourself in. Also, understand your foe and their tactics. They are organized and trained. Do not be at a disadvantage.
Plunging fire vs grazing fire. It’s all about mowing the lawn with your weapon.
Not too dumb for this group of thugs. Did you see any Mensa member probables in that crowd?
“Do you feel lucky, punk?”
Have you ever been to a Mensa chapter meeting? I have. And, your point is…? ;-{)}}}
OFF TOPIC: Popup ads on the left side, that follow you down the page? Really? I hope the site won’t be getting auto-play videos that jump to the lower right corner as one scrolls down.
Browse on a desktop or laptop and use uBlock Origin to block html elements like the sidebars. Even my android tablet’s browser allows this.
Thanks for the tip, it just disappoints me that LI has had to stoop to this sort of thing. For the record, I actually DO click on some of the ads and links, but will NOT click on follow-me ads, nor will I click on ones that blink and have movement.
I just loaded the Duck Duck Go browser and got rid of all of that nonsense.
Note to Professor Jacobson: Sir. I will go to a regular browser and click ads to assure a revenue stream for the site. I wanrt to help. I especially like the ones about industriial products of a type I never spec’d or used, but I am a geek so like reading their sites.
But, blinking dress ads, and stuff that – gawd forbid you click in error – plays videos and sounds, no.
I noticed this today. I am traveling and stuck with a tablet. Really PITA.
Wouldn’t the dismissal of charges be up to a judge?
Well, yes. That’s why the AG is seeking to dismiss them. He has asked the court to do so.
As long as the judge’s name isn’t Emmet Sullivan, they should be good to go.
Or, that Berman-hyphenated-name creature.
Maybe folks will learn the meaning of curtilage out of this
The statute says, in part:
*571.030. Unlawful use of weapons — exceptions — penalties. — 1. A person commits the offense of unlawful use of weapons, except as otherwise provided by sections 571.101 to 571.121, if he or she knowingly:
(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;
The statute fails to define “Exhibits.”
Is this statute void because the statute does not explain the conduct that is to be forbidden?
A defendant should not be charged when the statute is vague.
Exhibits is a perfectly ordinary English word, and no more needs defining than any other word in that sentence.
The statute does not even apply to what the McCloskeys did, because as the AG’s brief explains, there is a specific exclusion in the statute that says that it does not apply in cases where the person is exhibiting the weapon while defending their life or property, which is indisputably what the McCloskeys were doing.
That law reads like Lewis Carol wrote it. it can mean whatever the judge or the persecutor SAYS it means.
This is the case with any law. More so, in some cases, the law be damned, and prosecutor, judge, and jury will do what they damn well please. Perhaps I have become cynical, but the outcome of legal proceedings mostly depends upon the temperament and prejudices of those involved. It’s crap shoot, but I guess it’s better than mortal combat.
I shall repeat myself, however, in that one reason were have a right to trail by jury is so a jury can nullify the evil or intemperance of a cabal of unjust prosecutors and judges. And in case you are also surround by unjust and intemperate fellow jury members, you may, if you decide, nullify the entire evil enterprise by voting to not convict. It only takes one brave soul if you are a juror.
I’ve not served on a jury, but would not mind doing so. However, I wonder this, and maybe those of you on here who are defense attorneys (or, is that attornies?) can answer this:
What is the risk of, say, not convicting, then having the local law enfarcement people, or a Nifong-style DA start harassment, or doxxing? Just HOW annonymous IS a jury, really?
The pistol was originally inoperable. Gardener’s office took the gun apart and re-assembled it to make it operable. That is tampering with evidence, which I understand is a felony. The MO AG needs to bring to trial whoever was involved in evidence tampering.
Actually, it was not tampering with evidence. Let me explain.
The police department acknowledged that the weapon was not capable of being fired, upon it being delivered to them. They cataloged its condition and why it was not operable. So, the evidence was not tampered with. The next question is, given the condition which rendered the weapon inoperable, if the condition were corrected by the simple expediency of assembling the weapon properly, would it be operational? If so, the final question is, when was the weapon rendered inoperable, before the incident, under investigation, occurred or after?
So, testimony will be given that the weapon was inoperable, at the time it came into the possession of the police. By simply removing the firing pin and spring, reversing it and reinserting it, the weapon was made operational. Was the weapon operational at the time of the incident? Who knows. So, the evidence was not tampered with, by the police. Was it tampered with prior to the police taking custody of the weapon, but after the incident? Again, who knows.
Do you think the McCloskeys have the knowledge to do what your describing? I have several pistols and I have no clue how to remove the firing pin and spring and reverse them to make the pistols inoperable.
The weapon was not in the McCloskey’s possession, at the time the police received it. It was in the possession of their attorney. So, it could have been tampered with between the time of the incident and the time it arrived in police custody. Would the McCloskeys have the knowledge and ability to reverse the firing pin? Possibly. There are probably several How-To videos on Youtube. But, it could have been done by someone else, after the incident occurred. This is why evidentiary material, such as this, is usually gathered immediately after an incident occurs, not days or weeks later.
Now, the McCloskys’ explanation is that the pistol was rendered inoperable, in this manner, so that it could used as a prop in court. If such were the case, wouldn’t it have been much more efficient and safe to simply remove the firing pin altogether? Another interesting question.
I would not have thought of reversing the firing pin, but if the McCloskeys had removed the firing pin altogether, they would have had to store it somewhere where it could easily be misplaced or lost. Easier to keep it stored inside the pistol!
“Do you think…”
We’re not talking about something difficult to do or hard to figure out.
There simply is no way for anyone to know what state the weapon was in during the time under consideration.
According to the couple’s attorney the handgun was used as an exhibit in a trial and it was inoperable when it was in the possession of the McCloskeys. Allegedly on learning the handgun was inoperable when the PD received it, an Assistant Circuit Attorney (the assigned case Assistant?) asked the PD “lab” to make it operable and the lab personnel did so. On disassembly they found a spring was placed in the wrong position to prevent operation and reassembled it properly so it would be fully functional.
This is such fake bullshit. Does anyone out there actually believe that a guy like that, with his pink shirt, would actually carry a basic model ar-15? This is staged. Any pink shirt wearing republican has to have at least 8 aftermarket attachments on their ‘gun’. Where is the red dot sight, the bi-pod for the 14″ barrel, the extended mag, the ‘custom skin’, Fake News.
You got something against pink shirts?!
Starting to think the benefit of the doubt you extended this commenter may not have been warranted after all.
Not to mention real bullshit as opposed to the fake kind.
Gay gun rights group called “Pink Pistols” would disagree about pink…or as my Okie wife pronounces it “pank”.
Oh I’m totally wanting to go to the IDPA matches wearing pink and khaki…
The thing is, I’m not good enough to pull it off… (relative to IDPA competitors). Need to be in the top 25% before being smart ass like that.
“OrJustThink” is pink.
Very pink, commie pink, I think.
The reports I heard were that they’re long-time Demorats.
They don’t desrve what is happening to them if they are. Equal protection and all that sort of thing.
“…a white St. Louis couple if they are charged for brandishing guns during a racial injustice protest outside their mansion.”
Whoever wrote that earned nothing but contempt.
Okay, remember that this is a political farce, not an actual criminal prosecution. This is a case involving well known area attorneys in a highly politically charged atmosphere. And, the evidence against the attorneys is horribly deficient. So, under normal circumstances, the prosecutor would take the case to a grand jury. This gives the prosecutor political cover to not proffer charges which are very likely to be deficient.
But, that did not happen here. Instead, the prosecutor cherry-picks the relevant statute, completely ignoring the very clear statutory exceptions within. There is a clear exception for the display of a firearm to discourage trespassers. The mob was trespassing. The same is true of those damaging property. Property [the personnel gate] was damaged. Though we do not know who damaged it, it is unlikely that the McCloskeys did. There is a clear exception for a threat to discourage a person making an active threat of physical harm to another. Members of the mob made such threats. So, the chances of gaining a conviction are almost zero. This was done for short term political gain, not to further the cause of justice.
One question: I’ve read that photographic evidence shows the gate was damaged after this incident, i.e. the mob did not rip it down but passed peacefully through it. Is there any truth to that? Because that would change the narrative. It was the mob ripping down the gate that supposedly gave the McCloskeys reason to believe the “protesters” were not peaceful, and therefore posed a threat to them. If that didn’t happen then their case is a lot weaker. Does anyone know anything about this?
Was the mob on private property?
Yes, they were trespassing.
Mere trespass, especially when it’s not on your property, doesn’t give you the right to point a gun at the trespassers. You need some reason to believe you are in danger. Violently breaking in a gate would provide that, so it’s important to know whether they did that.
The claim is out there that they didn’t, and the damage to the gate happened some time later. If so their case gets a lot weaker. But I don’t know how much truth there is to that claim, so I’m asking whether anyone here knows.
It appears from early footage provided by the mob, that the gate was opened by those who entered without being bent double as later photographs showed. But, we do not know when the damage occurred, or if the gate was locked at the time of the initial entrance. If it was locked and the lock was broken, then this was hardly peaceful. It was reportedly posted as being private property, though.
So, say that the first few people passed through the open, but largely intact gate. But, prior to the McCloskeys coming outside their house, someone bent the gate double. What would the McCloskeys have seen?
The kicker here is that the mob was on private property, which was reportedly posed as such. They were not there at the invitation of any of the residents. This is trespass. They were told by a resident to leave and refused. This is now trespass after warning. Reportedly, some of the trespassers then threatened the McCloskeys and their property, indicating that they reasonably believed that the McCloskeys were legal residents of the area. Given the size of the mob, this could reasonably be assumed to constitute assault, possibly aggravated assault.
Nah, the McCloskeys are on firm legal footing here.
On the other hand, what if the gate was not locked, and the damage happened after this whole incident was over. That would change the picture dramatically. We only have the McCloskeys’ word about the threats; the prosecutor may deny them, and it would be for a finder-of-fact to decide who’s right. And the mob was on private property but not on their private property, so their authority to tell it to leave, let alone to use force to make them leave, is questionable.
I love “Wht if” monkeys.
We do not know exactly when the gate ws damaged, so that point is moot. And, even if the gate were standing open and the entrance was was not posted Private Property No Trespassing, this mob was ordered to leave by a party which they recognized as being a resident. This constitutes trespass after warning. Now, even if the street and sidewalk were not owned directly by the McCloskeys, if they are members if the homeowners association, they might well have the legal authority to demand that anyone not being authorized by another resident to enter and remain on the property, to leave. And, given the nature of the incursion as well as the size of the group involved and the political climate existing in the community at the time, a reasonable man would reasonably assume that the group represented a highly dangerous threat, even without verbal threats of death and arson.
Now, an interesting thing about residential property. In many places, the actual property lines of individual lots extend to the middle of any congruent streets or roadways. With public streets, the local government usually establishes a public right-of-way which allows any member of the public to utilize the right-of-way for travel. With private roadways, the same right-of-way situation often exists, but it is dine through use and proscription and is restricted to those invited or authorized to use the right-of-way by the residents of the community. This gives the adjacent home owners a certain amount of legal authority to deny uninvited persons the use of the right-of-way.
No, this is still a steep uphill battle for the prosecution.
I regret that I have but one upvote to give your comment.
Excuse me? You’re the one offering a “what if”:
That is pure speculation on your part. I’m just asking what if it’s not true.
The point of exactly when the gate ws damaged is very much not moot. It can be crucial to the case. The prosecution may produce witnesses (whether true or false) that the mob did not destroy the gate.
There’s no “if” about that. They’re not.
One thing everybody needs to get straight when discussing the McCloskey’s right to defend themselves is the only thing that matters is their reasonable perception of the threat, not what the actual intentions of the mob were, or which of them broke down the gate, or who was standing on who’s property. Also, as a practical matter, when a mob acts in concert, it isn’t terribly relevant which members of the mob broke and entered the property. If a prosecutor were charging individuals with trespassing, then it would matter whether it could be proven which member of the mob did what. But to have a mob break into your property, making distinctions about which members of threatening mob are the real threat isn’t a reasonable expectation. For self-defense purposes, when a mob threatens you as a group, then every member of that mob is a threat to you.
Also, the McCloskey’s will testify that the mob made verbal threats to kill them and burn their house down. Whatever fears they may have had about what the mob would do, such threats matter a great deal for purposes of whether they would reasonably perceive the mob as a deadly threat, particularly since these verbal threats were coming from a mob right in front of them with the ability and opportunity to carry them out. Whether in fact the mob made such threats is a question of fact for a jury to decide, but given recent events and the tendency of peaceful protesters to cut loose and engage in rioting would lead me to give some credence to the McCloskey’s claims and the reasonableness of their fears.
If this goes to trial, and I doubt it will, this is an absolutely unwinnable case for the prosecutor.