Yes, The St. Louis Couple Could Be Criminally Charged But It Would Be No Slam Dunk Prosecution

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Two lawyers in St. Louis are in the middle of a firestorm after they were shown outside of their house with guns in a confrontation with protesters en route to the nearby house of Mayor Lyda Krewson. Mark and Patricia McCloskey are shown aiming their weapons at the protestors, including Mark McCloskey’s assault-style rifle.  St. Louis Circuit Attorney Kim Gardner has publicly declared that she is looking for criminal charges to bring against the two lawyers.  That has led to many in the criminal defense field (including many who reached out to me) to speculate on what charges she might bring under these facts.  While many have suggested that this would be a slam dunk prosecution or that the fact easily satisfy criminal definitions, it may be easier to get a charge than a sustainable conviction.

The McCloskeys have insisted that they were responding to what they saw as a clear threat. They insist that most of the protesters were peaceful, that they had no problem with those protesters, and that they support Black Lives Matter.  Critics insist that they were the cause of the escalation and the gun display was uncalled for and threatening.

The attorneys called the St. Louis Police Department shortly before 7:30 p.m. on Sunday and the police report confirmed that “a large group of subjects forcefully break an iron gate marked with ‘No Trespassing’ and ‘Private Street’ signs.”  (For the record, I have seen pictures of the gate and it is not exactly formidable and does appear “smashed.” However, it is clearly marked as private property and was forced open).

Gardner issued a statement late Monday morning that she was “alarmed at the events that occurred over the weekend, where peaceful protesters were met by guns and a violent assault.” She added “Make no mistake: we will not tolerate the use of force against those exercising their First Amendment rights, and will use the full power of Missouri law to hold people accountable.”


Some have criticized the public declaration of Gardner in light of these claims. Gardner has been under fire for the release of alleged looters and rioters without charges.

The question for this blog is what can Gardner use in such a case as a criminal charge and some of our Missouri lawyers might have some insights to share.

First, here is part of the videotape that would feature prominently in any trial:

Patricia McCloskey is shown most clearly in pointing a gun at protesters.  Mark McCloskey actually points a rifle as much at his wife, but also there are points where he turns his body with the barrel pointing at protesters. Both are bare-footed and can argue that they ran from their home to confront what they viewed as an immediate threat. Patricia McCloskey is shown going to the side of the house and she is likely to claim that she was trying to fend off intruders as part of any defense.  However, the prosecutors can argue that the videotapes do not show aggressive conduct or movement toward the house.

The key may be any home security footage or other videotape and witness-based evidence to support the claim of the initial threats or threatening conduct.

Here is another video however where Patricia McCloskey is clearing pointing the gun at the protesters:


Ironically, therefore, the clearer case may be against Patricia with the small handgun than her husband with the assault-style weapon.

Here is an interview with the husband.

The most obvious criminal charge could be Section 571.030(4), which allows for a Class E felony charge when a person “[e]xhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.” Such a conviction can bring up to four years in prison, one year in jail, and/or a $10,000 fine.

It is not unlawful to be outside of one’s home on your property with a lawful weapon, which may be the ultimately defense for Mark McCloskey  if he is not shown pointing the weapon intentionally at any individual.  Indeed, we have seen the same type of weapon displayed in public in rallies (like those against the lock-down orders) and protests (like some in the “autonomous” zone in Seattle).  Obviously, existing footage shows Patricia McCloskey pointing the weapon.

However, a complicating factor is that Missouri is a state with a Castle Doctrine law and these guns were lawfully possessed.  The law states, in subsection 3,  that deadly force cannot be used unless “[s]uch 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.” However, no lethal force was used here. It was threatened.

That raises two questions.  Is the law triggered by entry on the property as opposed to entry without the home?  Also, does the law implicitly support the show of force to deter entry.

Some have cited the 2016 case of State v. Whipple, which interpreted subsection 3 is not giving  “the occupier, owner, or lessee authority to stand his ground and use deadly force without having a reasonable belief that such force is necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force.”

However, the McCloskey’s are alleging that they were threatened directly, the protesters were already trespassing, and that the breaking of the gate constitutes a reasonable basis for their fear. That seems the ultimate jury question.  Whether you are carrying a gun to deter violence or “in an angry or threatening manner” could grounds for both a factual defense and even a constitutional defense based on the vagueness of the standard when applied to homeowners standing on their own property.

There is also the possibility of an assault charge under Section 565.056 (3-4), which 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.” This again is subject to the same arguments raised with regard to the potential brandishing charges.

As a criminal defense attorney, I often worry about a client who becomes such a focus of national media attention.  Prosecutors are elected officials who tend to respond to outcry of the public. The image of two affluent individuals standing in front of their luxury home with these weapons is nightmare for defense counsel.  However, there are some tricky issues here in the use of these laws in the balancing of the rights of self-defense under laws like the Castle Doctrine law and countervailing prohibitions on threats or assault.  Indeed, the pre-trial motions would be fascinating to watch as the defense seeks dismissal on the basis for statutory or constitutional claims.  The prosecution needs to get not just a judge to reject such a motion for dismissal, but a jury to rule unanimously in favor of the charges.  Any conviction would allow for ample grounds to appeal.

Missouri Castle Doctrine Law:

 *563.031.  Use of force in defense of persons. — 1.  A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she 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, unless:

  (1)  The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:

  (a)  He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or

  (b)  He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or

  (c)  The aggressor is justified under some other provision of this chapter or other provision of law;

  (2)  Under the circumstances as the actor reasonably believes them to be, the person whom he or she seeks to protect would not be justified in using such protective force;

  (3)  The actor was attempting to commit, committing, or escaping after the commission of a forcible felony.

  2.  A person shall not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:

  (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.

  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.

  4.  The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

  5.  The defendant shall have the burden of injecting the issue of justification under this section.  If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.

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