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:
(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.