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I Just Saw a Unicorn!
I just saw a Unicorn.
Okay, not really, but something almost as rare. A politician with an actual spine who, instead of saying “I support the Second Amendment, but…” did something incredible. He filed a brief in state court, as the Attorney General, demanding the dismissal of the McCloskey prosecution (the St. Louis couple who defended their home with their firearms) based on the statutes in Missouri. Hard as that is to believe, the Attorney General stood up for the Second Amendment. Eric Schmitt is a hero and should win re-election by a landslide.
In the past few years when political appointees have filed briefs in the Court, they have for the most part been political statements designed to shore up their support or attack an opponent. They read like news releases with a case style heading. While there is a bit of an element of that in Schmitt’s brief, the overall argument was simple, clear, direct, and persuasive.
The neo-socialist prosecutor Gardner charged the McCloskey’s with Unlawful Use of a Firearm under § 571.030(4). That paragraph states a person is guilty of unlawful use of a weapon when that person: “Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;”
We could easily have a debate about whether the McCloskey’s acts in arming themselves and coming outside with their firearms was exhibiting them “in an angry or threatening manner.” Apparently, the prosecutor thought this was the most significant part of the encounter. Not the protesters knocking down a gate, not them threatening to kill the McCloskeys. Not their display of weapons, and not their promise to burn the house and kill the dog. When you display firearms and threaten to kill someone, certainly no one could interpret that as an angry or threatening manner. But, of course, the media and the protesters did not film their own actions.
But, and General Schmitt is absolutely correct when he says this, what the McCloskey’s did was not a crime under Chapter 571. This because the part of the statute the prosecutor did not quote says this: “Subdivisions (3), (4), (5), (6), (7), (8), (9), and (10) of subsection 1 of this section shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031.”
So, what does the applicable part of that statute provide?
Section 1 provides the use of deadly force is authorized in certain instances, and physical force is also authorized in certain instances. It says a person may use deadly force if he reasonably believes “such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person.” For example, an angry mob storming your property and threatening to kill you, burn your house, and shoot your dog. I’m pretty much thinking that qualifies for the use of deadly force. It’s why my AR stays in the gun safe with a 40 round magazine in it. So, if someone is authorized to use deadly force, they are also authorized to threaten deadly force. Can you imagine a prosecutor saying “well, yes, judge, the fact the defendant shot the armed intruder was perfectly legal, but he threatened him first, and we can’t have that!” Reading the complaint in this case, you’d have to believe that someone in the prosecutor’s office might have said “hey, what about § 563.031?” But Gardner has purged anyone who isn’t ideologically committed to socialist rule.
Section 2 then provides the qualifications which are fairly standard across the country. You can protect yourself or another against “serious physical injury, or any forcible felony;” A forcible felony, for example, like a riot.
But the statute goes even further. It extends protection far beyond the borders of deadly force in most other states. Missouri is unique in this regard. It privileges a person to use force against someone unlawfully entering a dwelling, but also, in subsection 3, provides the force is lawful when:
(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 …” It then provides:
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.
In other words, the statute provides that if you reasonably believe you are going to be the victim of unlawful force by someone who has invaded your property and will not leave, you don’t have to retreat, you may stand your ground, and you may use deadly force. Again, if you can use deadly force, it follows from logic that you can threaten it first.
Thus, the Attorney General is completely correct when he says that the couple’s actions were not criminal at all. They do not have to interject the defense here because they were not charged with assault, armed criminal action, or some other gun crime. They were charged for merely displaying the weapon in what the prosecutor believed (or says she believed) was a threatening manner.
And here is the interesting procedural twist to this. Suppose the judge agrees and dismisses the case. The city prosecutor cannot appeal because in all felony cases the appeal is handled by the Attorney General. And it is the Attorney General moving to dismiss. Since the Attorney General is second only to the state courts in terms of his analysis of a statute, his words and his brief will be persuasive at the Circuit Court. The fact that he is the top law enforcement officer in the state is alone enough to grant the motion to dismiss the case. Unless the case has drawn an Emmett Sullivan wannabe, this should drive a stake into the heart of this unlawful prosecution.
One of the really great things about the Attorney General’s brief is that it points out that Missouri’s Constitution provides far greater protection for firearms rights than does any other state’s organic law. Article I, Section 23 provides:
I Section 23. Right to keep and bear arms, ammunition, and certain accessories — exception — rights to be unalienable. — That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.
Thus, the right to keep and bear arms, as formulated in Missouri, requires that if the McCloskey’s challenge the prosecution on the basis of the State Constitution, that the court apply strict scrutiny, and also that it strictly interpret the law. No hearing should be required, but even if the Court were to hold one, the state would have to prove, beyond a reasonable doubt, that the McCloskey’s did not believe they were at risk. Anyone who saw the murder of David Dorn in St. Louis only a few nights before is not going to buy that proposition for even a moment. The likelihood is that the case will be dismissed. The real question is what happens to prosecutor Gardner.
It is so refreshing to see a politician with an actual spine stand up and push back against a prosecutor that has gone rogue. We need more AGs like Mr. Schmitt.
Published in Law
The McCloskeys had the right to keep and bear arms. They had the right under the First Amendment to speak, and they did so to clearly state their intent. That can only be viewed as threatening to people intent on frustrating that intent by trespassing on their property.
This case is garbage.
I was truly heartened when I read that yesterday.
https://ago.mo.gov/home/news/2020/07/20/attorney-general-schmitt-files-brief-defending-missourians-second-amendment-rights
Briefs:
Pat:
https://ago.mo.gov/docs/default-source/default-document-library/2020-07-20—state-v-patricia-mccloskey—amicus-brief-of-attorney-general-schmitt—filed.pdf?sfvrsn=e1b38af9_2
Mark:
https://ago.mo.gov/docs/default-source/default-document-library/2020-07-20—state-v-mark-mccloskey—amicus-brief-of-attorney-general-schmitt—filed.pdf?sfvrsn=97e7ed6d_2
Soros-backed organizations have been quietly funding campaigns for leftist candidates for lower-level political positions for more than a decade now. Especially the offices that are responsible for certifying election results.
They need to sue to get their weapons back and also sue for harassment and getting a search warrant under false pretenses after all they are lawyers.
@ctlaw helpfully posted in a Ricochet lawyers group a link to the documents charging the McCloskeys. The “statement of probable cause” attached in support of each is quite a piece of work, being complete dishonest without actually making any factually incorrect statements (with one possible exception).
The “statement of probable cause” is signed by a person I presume to be an investigator for the circuit attorney (the position many states call district attorney). An investigator friend of mine says such statements are normally drafted by the attorneys for the investigator to sign. As much as I can tell, the statement contains no factually incorrect sentences. But, by omission of many key known facts, the “statement of probable cause” is a dishonest statement. I would really not want to be that investigator having to be grilled in court by the McCloskeys’ attorney about that statement and which facts were put in and which were left out, and why.
According to the “statement of probable cause,” two people identified by initials and “other protestors” “walked through a gate onto the street and sidewalk of Portland Place.” No mention of the number of “other protestors,” which I have seen reported as between 100 and 500. No mention that the protestors apparently destroyed the gate before “walking” through it. No mention that at least some protestors may have moved past the sidewalk toward the house.
No mention of any of the many reported threatening actions or words by the protestors (including apparently the display of at least parts of firearms), but the “statement of probable cause” asserts that the McCloskeys “immediately” confronted the protestors (this might be a factually incorrect statement, though the two identified protestors might have arrived on scene late enough in the larger confrontation that it was “immediate” as to those individuals). By omission and by careful word choice in the document, the reader of the “statement of probable cause” is likely to infer (incorrectly) that the McCloskeys left their porch and confronted the protestors on the sidewalk or in the street.
Admirable as it is that the state Attorney General has a spine, it is discouraging that people as corrupt and dishonest as the local circuit (district) attorney have control of the reins of power that can substantially ruin people just because they’re the “wrong” type of people or hold the “wrong” opinions. The McCloskeys have the resources and the knowledge to maneuver in and around the system. Many others do not.
@fullsizetabby St. Louis City differs from St. Louis County, but both are statutory counties. St. Louis County is the donut. St. Louis City is the Donut Hole. It’s weird, but it’s the way it works. The city is mostly urban and has fewer blue collar Democrats than in years past. This prosecutor was elected by a strong turnout of the black vote. But by not going after the murderers and rioters there’s a good chance she will lose the next election.
Unfortunately many are finding out that you get the government you vote for, so you better be damned careful about your vote.
McCloskey charging statements:
https://bloximages.newyork1.vip.townnews.com/stltoday.com/content/tncms/assets/v3/editorial/2/ef/2ef1303e-97e7-5693-9662-5493ea7e2a94/5f160ac1328b5.pdf.pdf
https://bloximages.newyork1.vip.townnews.com/stltoday.com/content/tncms/assets/v3/editorial/6/fe/6fee6a3e-07c9-590c-af7d-f2ae4d63b48a/5f160ac0f0dee.pdf.pdf
It would be interesting to see what MO law says about: 1) required completeness of facts in such statements; and 2) what the threshold is for the prosecutor to not have evidence that the accused has a defense.
IIRC, there is big variation in the latter among jurisdictions. Some allow charges even when there is overwhelming evidence of a defense (e.g., charging the McCloskeys and forcing them to prove in court that they lived in that house and could claim castle doctrine defense), with others not.
I do not know its truth, but also read that during their displays, Mr. M’s rifle was unloaded and Mrs. M’s pistol was just a prop from a court case, so neither weapon was “readily capable of lethal use”, and thus another statutory element of the charges fails.
That’s reaching. Unloaded or loaded makes no difference to any law I’ve ever heard of. It does imply the McCloskeys need to do a little more than buy a gun and leave it lying around unloaded.
Equally good was the governor, Mike Parson, who lambasted Gardner for leaving murder cases in the deep freeze while pursuing this case against the McCloskeys.
Parson, in a series of tweets, railed against the charges, saying Gardner’s office “has admitted there is a backlog of cases and dozens of homicides that haven’t been prosecuted, yet she has accelerated this case forward,” read the tweet. “We must prioritize laws that keep our citizens safe over political motivations,” Parson tweeted. “Kim Gardner owes every single family who has had a loved one murdered an explanation on why she has acted on the McCloskey case instead of theirs.”
BIL in Illinois had a bunch of weapons seized by the state police.
Court tossed the case and ordered them returned.
SP dragged its feet for a year.
Finally returned the weapons, disassembled into individual parts in one box.
Cost him a fortune to have a gun smith help reassemble them.
he’s a solid Citizen with NO (Edit) record of problems with the law. And that’s how they treated him.
Well that was stupid. Great way to get killed.
I do not agree it’s a reach.
“Gardner charged the McCloskey’s with Unlawful Use of a Firearm under § 571.030(4). That paragraph states a person is guilty of unlawful use of a weapon when that person: “Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;”
Criminal due process requires the prosecution to prove each and every element of the crime charged beyond a reasonable doubt. So it would have the burden to prove that each weapon was real and was loaded, else a jury could easily and reasonably conclude it was not “readily capable of lethal use”, thus acquit. At least, IMO a fair-minded judge would allow the defense to present the argument (assuming there is a bit of admissible evidence to support such a claim) and let the jury decide.
@ctlaw 561.031 puts the burden on the prosecution to disprove the defense. Gardner already has some ethical issues outstanding so if for some reason she retains her seat, look for the Office of Chief Disciplinary Counsel to go after her license. If she is suspended, even for 30 days, she loses her position.
The McCloskeys are trial lawyers. They’re used to fighting with words. Not sure if the guns were loaded or unloaded, but if unloaded I fail to see what possible use they could have been.
My thanks to everyone who upvoted this.
People bluff because sometimes it works.
What great news. First to find out that there is a decent politician who was willing to go the extra mile and help out the McKloskey’s.
Secondly to find out that this couple’s horrible and degrading nightmare is nearing an end. (Or I certainly hope so.) How the news media and various talking heads could take pot shots at them for simply wanting to protect themselves, I do not know.
It appears to me that more and more people are turning their backs on legacy media. I am finding that out from some of the small offbeat FB groups I belong to. One group is growing by leaps and bounds, and it is “Californians against the Quarantine” (Or “against the unreasonable quarantine” or some such.) None of us can stand what passes for newspaper reporting inside Calif these days.
It is obvious to anyone whose IQ is more than room temperature that the couple was clearly threatened. After all, TV footage from across the nation indicated that in some cities the police had been ordered to stand down, or in others, there simply were not enough officers available in large enough numbers to protect each homeowner. If we cannot stand and protect our turf against the waves of Mao-ists who are being backed by Dem Mayors, Governors, and forces like Soros, then who can we defend ourselves against?
McCloskey specifically mentioned that he watched a nearby 7/11 gas station burn down before police or fire responded, so he has a good explanation for his concerns about the mob outside his house. I think it also explains why it made perfect sense for them to be outside the house, instead of inside, waiting to burn.
I believe Section 23, quoted above, is what we just recently added to our constitution. Glad to see it being put to good use.
The left’s take on the recent amendment (not surprisingly) is that it would keep police from ever charging anyone with any gun-related crime. (This is a good time to roll your eyes.) But the mob threatening the McCloskey’s were specifically calling for the defunding of police. So they didn’t want police getting any gun-wielding criminals, anyhow.
(I still don’t know why we’re not talking about how armed citizens defending their property is exactly what defund-the-police protestors should expect, once police are de-funded.)
In the vast majority of defensive use of firearms by citizens, the defensive citizen does not pull the trigger. All they need is for the aggressor to believe that the defensive citizen might fire the weapon.
That is not what they expect. They expect the authorities to force citizens to bare their throats.
I think the politicians who are kow-towing to the ‘defund’ people are expecting the police to disarm the population, and the ‘defunders‘ themselves are (knowingly or not) instigated by anit-fa and BLM types who think that they can escalate and wage a hit-an-run guerilla campaign against the suburbs and rural communities to bring them to their knees.
I was dumbfounded to hear that, regarding Missouri law. Does MO permit one to escape firearm charges if the gun isn’t loaded while, say, robbing a 7-11?
Anyway, from the statute (linked above):
So does the lack of ammo indicate the weapon wasn’t “readily capable of lethal use?”
I do note this in the statute as well:
but I’m not sure whether the presence of the explicit phrase here implies anything about the other paragraph.
Much as I’d like to see the McCloskeys escape injustice on a technicality, I don’t think so. You can stick a mag into an AR-15 and charge it very quickly. As for Mrs. McCloskey’s pistol, it wasn’t broken – it was incorrectly assembled. Their pistol and their rifle both were (for practical purposes, remember IANAL here) readily capable of lethal use.
@barfly, Missouri does adopt the standard canons of construction, so the mention of “loaded or unloaded” in one section and its exclusion in another could very well be argued in the way you suggest.
Also, armed criminal action and robbery make the use or threatened use of a weapon a crime. If you use your Red Ryder BB gun to stick up the 7-11 you go down for armed robbery.
“standard canons of construction”.
Good to have you around, Anthony.
@barfly If you’re interested in that kind of thing Justice Scalia wrote an entire book about how statutes and constitutional provisions are supposed to be interpreted. It’s one of the most fundamental parts of my law practice as an appellate attorney. I am arguing grammar and construction as often as the law itself. I admit it. I’m a law nerd. I loved law school. I am probably the only person you’ll meet who will tell you that.
Immunity laws vary a lot between states, of course, but at least by California standards, Gardner has set herself up for lawsuits that could, let’s say, have a major impact on that jurisdiction’s budget for years to come. The McCloskeys likely will be able to pay cash for the completion of the renovation of that mansion. And then some. A lot of some.
I also admit to having loved the rigors and challenges of law school. Law review was a blast. Even got to teach one year, legal research and writing skills, to 1Ls. My first job in a state AG’s office meant lots of briefing and arguing in appellate courts. Later private practice had more variety and human contact, but seldom presnted the fine intellectual puzzles that the earlier years had provided. Law nerds rock!