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.