Tuesday, July 21, 2020

Despite criticism from Trump and Gov. Mike Parson, Missouri prosecutor has lawful grounds to bring charges against St. Louis couple for brandishing guns

Mark and Patricia McCloskey

The governor of Missouri doesn't like it and the president of the United States doesn't like it, but Circuit Attorney Kim Gardner got it right yesterday when she filed criminal charges against a St. Louis couple who brandished weapons last month at protesters who were on the street in front of their $1-million home. From an Associated Press report at Politico:

St. Louis’ top prosecutor told The Associated Press on Monday that she is charging a white husband and wife with felony unlawful use of a weapon for displaying guns during a racial injustice protest outside their mansion.

Circuit Attorney Kim Gardner announced the charges against Mark and Patricia McCloskey, who are both personal injury attorneys in their 60s. They also face a misdemeanor charge of fourth-degree assault.

Gardner said in an interview with the AP ahead of more broadly announcing the charges that the McCloskeys’ actions risked creating a violent situation during an otherwise nonviolent protest.

“It is illegal to wave weapons in a threatening manner — that is unlawful in the city of St. Louis,” Gardner said.

How do we know Gardner is right about that? Well, the relevant statute -- RSMo 571. 030 -- is clear-cut:

2005 Missouri Revised Statutes - § 571.030. — Unlawful use of weapons--exceptions--penalties.

571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:

(1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use; or

(2) Sets a spring gun; or

(3) Discharges or shoots a firearm into a dwelling house, a railroad train, boat, aircraft, or motor vehicle as defined in section 302.010, RSMo, or any building or structure used for the assembling of people; or

(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;
 Item No. 4 likely is the key element in the McCloskey case. They were caught on camera doing exactly what No. 4 describes. (See video embedded at the end of this post.)

Governor Mike Parson went on the Sean Hannity Show last night to decry the charges, but in light of the statutory language, Parson pretty much made a fool of himself:

Missouri Gov. Mike Parson told "Hannity" on Monday that "without a doubt," he will pardon Mark and Patricia McCloskey, hours after St. Louis Circuit Attorney Kimberly Gardner filed felony charges against them.

The charges stemmed from the McCloskeys wielding firearms after a crowd entered their gated neighborhood, and some allegedly threatened them and their property. The McCloskeys argued that they broke an iron gate to get onto the private street.

Parson, a Republican, said Missouri was one of several states with a "castle doctrine" principle wherein people could protect themselves, their family and/or their property in certain situations.

"Without a doubt, Sean," he said when asked about a pardon. "I will do everything within the Constitution of the State of Missouri to protect law-abiding citizens and those people are exactly that. They are law-abiding citizens, and they're being attacked frankly by a political process that's really unfortunate."

He called it a "sad day" for the state and noted that he has already spoken with President Trump, who agreed that the McCloskeys should not be facing felony charges for what they described as self-defense.

"They had every right to protect their property, their home, just like any of us would. If you had a mob coming towards you, whether they tore down a gate or not, when they come on your property, they don't have a right to do that in an aggressive manner. People have a right to protect their selves, their families, their property," said Parson.

A few points about Parson's remarks:

(1) Missouri's Castle Doctrine applies where an occupant believes someone is unlawfully entering his residence.  We've seen no indication that any protester attempted to enter the McCloskeys' residence.

(2) The McCloskeys had a right to protect their property, "against a mob that came on their property"? Numerous videos are online of the incident, and I haven't seen one that shows protesters on the MCCloskeys' property. They appear to have come right to the edge of it.

(3) Is Parson suggesting Gardner should ignore the law because the governor considers the McCloskeys to be "law-abiding citizens"? The governor should know the justice system doesn't work that way. Perhaps the McCloskeys have been law-abiding citizens for most of their lives. But in this moment they acted contrary to the language of  a Missouri statute.

(4) President Trump has no authority over prosecutorial decisions in Missouri, so why is Parson talking to him? To earn political points? And Parson accuses Gardner of playing politics?

(5) If Parson does not like the way Missouri law reads, he should work with the legislature to change it. Does that mean the McCloskeys will be found guilty? No. Does it mean Gardner had probable cause to bring the charges? Yes.

Is Gardner "throwing the book" at the McCloskeys? Not exactly. From Politico:

Gardner is recommending a diversion program such as community service rather than jail time if the McCloskeys are convicted. Typically, class E felonies could result in up to four years in prison.

As for the assault charge, this comes from a recent article, quoting a St. Louis law professor:

Under Missouri law, the distinct common law concepts of assault and battery are rolled into the same statute and defined under various degrees of assault. Section 565.056 (3-4) defines assault in the fourth degree as any conduct which “purposely places another person in apprehension of immediate physical injury” or “recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person.”

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