Screenshot via Twitter
St. Louis prosecutors recently charged attorneys Mark and Patricia McCloskey with “unlawful use of a weapon” after their zany impromptu gun show a few weeks ago. Waving an AR-15 and a pistol at marchers passing by their house may confer hero status among the white grievance set, but in the real world it opens you up to felony charges. Luckily for them, Attorney General Eric Schmitt also gets his CLE credits from Tucker Carlson and he’s on a mission to end the politicization of the justice system by directly injecting himself into the process for purely political reasons.
From Ozarks First:
“Enough is enough,” said Eric Schmitt, Missouri attorney general. “As Missouri’s chief law enforcement officer, I simply will not stand by. That’s why I’m entering this case and seeking the dismissal of this case.”
The crux of Schmitt’s argument, outlined in a 12-page amicus brief, is that the Second Amendment protects every American’s right to brandish deadly weapons, the castle doctrine applied to the McCloskeys’ actions on their own property, and that any prosecution would chill others from trying to go Tony Montana on peaceful protestors. It’s a laughable jumble of words.
In the immediate wake of the incident, I wrote that the McCloskeys were probably within their rights because they stayed entirely on their property. Waving guns at people off your property shouldn’t be legal, but I assumed that Missouri was exactly the sort of state that would provide an absolute defense to doing whatever one wants on their own property. But it turns out this isn’t the case!
The operative statute, §571.030 makes it a felony to “Exhibit[], in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.” The exceptions to this are laid out in §563.031:
(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.
The McCloskeys have a whole lot of subjective belief, based on their claim that they thought the protestors were out to get them and were moments from storming the house, but translating that to “reasonable” — especially with the available footage — should prove an uphill climb with a jury. Even if the protestors unlawfully entered the gated subdivision, there doesn’t seem to be any evidence that the people on the receiving end of the McCloskey muzzles ever entered McCloskey property which is a big problem for this defense. The McCloskeys are big fans of adverse possession but even they can’t claim ownership of the street.
So, the statutes make it pretty clear that the McCloskeys could aim their guns at anyone who entered their property, but until someone did so they don’t have any right to aim at anyone.
To this, Schmitt responds quoting the deep history of constitutional law establishing an unencumbered right to keep firearms, which is to say he quotes the 12-year-old opinion that marked the very first time in American history that the law embraced that interpretation. Whenever I write about this case I get angry emails from people about the right to bear arms that seem to have no grasp for the fact that the conservative wing of the Supreme Court thought this was an utterly baseless proposition as recently as the late 80s. Honestly, the most effective “we’ve always been at war with Eastasia” of my lifetime has been the complete erasure of the history of the Second Amendment from 1791 to 2008.
He also lays out the statutory landscape in Missouri, but fails at any point to address that there’s not a castle doctrine defense when no one is in the castle. All he succeeds in doing with this brief is making it clear that the only defense the McCloskeys have to a felony charge rests on making the case that they had an objectively reasonable belief that a home invasion was happening… which is exactly the sort of fact question that requires a trial. So, yes, the AG makes the airtight argument for going forward with the case in his brief asking to dismiss the case.
This would be damning if this brief was even attempting to be a real legal document, but it’s not. This is just a quick blurb about the Second Amendment designed to give Schmitt some free publicity during an election year. He gets to tell his base that he won’t let a black woman like St. Louis prosecutor Kim Gardner tell white folks what to do. That should be good for some fundraising!
Unfortunately, it’s not good for public safety. Like a lot of states, Missouri’s chief law enforcement post is occupied by a stuffed shirt more interested in wasting state resources on abortion bans and trying to score cable news hits. But, the strategy has worked for the incumbent so far so it’s hard to imagine it’s going to change.
Missouri attorney general entering the McCloskey case to fight for its dismissal [Ozarks First]
Earlier: St. Louis Lawyers Wave AR-15 At Protesters Like Totally Normal, Totally Not Bonkers People
Opening Up The Above The Law Mailbox… Of Hate Mail!
AR-15 Couple Teach Us All About Adverse Possession!
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.