Sen. Hawley Calls For Federal Civil Rights Probe Over McCloskey Investigation

downloadUS-DeptOfJustice-Seal_svgMissouri GOP Sen. Josh Hawley has called upon Attorney General Bill Barr to launch a federal civil rights investigation of the St. Louis couple who wielded guns outside of their house during a protest in their gated community.  I have previously written about the possible charges against Mark and Patricia McCloskey and expressed my skepticism over the apparent effort of St. Louis Circuit Attorney Kim Gardner to find a criminal charge.  However, Attorney General Barr should decline this request from Sen. Hawley.  There is no civil rights violation in this investigation.  Indeed, while I thought the charges could be defeated in trial or on appeal, I previously wrote that the vague criminal provisions could be used to bring a charge.  The issue turns on how the guns were used.  While I find the criminal provisions to be vague and the application in this case to be unwarranted, it is not a civil rights violation to advance such an interpretation of the law.

Hawley maintains that Garnder is violating the Second Amendment by “targeting” the couple: “This is an unacceptable abuse of power and threat to the Second Amendment and I urge you to consider a federal civil rights investigation into the St. Louis Circuit Attorney’s Office to determine whether this investigation and impending prosecution violates this family’s constitutional rights.”

We previously discussed how Missouri law has countervailing laws that support the McCloskeys like the Castle Doctrine laws.  Hawley insists that these law as so clear and controlling that they make the motivations of the District Attorney equally clear:

“There is no question under Missouri law that the McCloskeys had the right to own and use their firearms to protect themselves from threatened violence, and that any criminal prosecution for these actions is legally unsound. The only possible motivation for the investigation, then, is a politically motivated attempt to punish this family for exercising their Second Amendment rights.”

Again, I have been critical of the basis for the proposed charges against the McCloskeys but these are broad countervailing statutes that are routinely subject to expansive interpretations by both prosecutors and defense attorneys.  The question is whether, if a court agreed that the couple was threatening people on the street, there could be a legitimate charge.  The answer is yes.  That does not make it a legitimate case in the absence of such evidence and the underlying statutes have vague elements that could allow for challenges.  However, that type of interpretative disagreement is not ordinarily the basis for civil rights charges.

The Justice Department clearly has the authority to investigate the violation of constitutional rights, but the specific basis for such an investigation is not clearly stated in the letter below.

The Second Amendment could be claimed as falling with the the Justice Department’s guidelines for the reporting of violations “based on … race, color, national origin, disability status, sex, religion, familial status, or loss of other constitutional rights.”  Some investigations of state prisons or offices generally involve constitutional violations though often with a gender or race discrimination element. The Justice Department recently moved to protect free speech rights on campuses.

However, it is not stated as the focus of common references to “civil rights investigations” as illustrated in the Civil Division’s statement that it “enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial status and national origin.” It is also not included in Title VI’s prohibition of discrimination on the basis of race, color, or national origin by recipients of Federal financial assistance or the Omnibus Crime Control and Safe Streets Act of 1968, as amended (Crime Control Act).

Here is how the FBI defines the scope of its mandate:

“The FBI investigates violations of federal civil rights statutes and supports the investigations of state and local authorities in certain cases. Federal civil rights violations fall into several categories: hate crimes motivated by bias against such characteristics as race, religion, national origin, and sexual orientation; color of law crimes involving law enforcement and related criminal justice professionals’ misuse of their right to discretion, such as use of excessive force or police misconduct; involuntary servitude or slavery; violations of the Voting Rights Act of 1965, the Civil Rights Act of 1964, the Equal Credit Opportunity Act, the Freedom of Access to Clinic Entrances Act; the Civil Rights of Institutionalized Persons Act; the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act; and violations of human trafficking statutes included as part or the Trafficking Victims Protection Rights Act. The FBI’s civil rights investigations are separate from Equal Employment Opportunity Commission investigations, although EEOC regulations are enforced within the agency.”

Putting aside the specific office and basis for the investigation, I simply do not believe that this would make for a compelling foundation for such an investigation.  Indeed, much of the criticism of Gardner is that she is acting for a base political purpose.  That is a common complaint against elected prosecutors.  Yet, the Justice Department has been a long defender of “prosecutorial discretion” on the use of the laws.  The point is that these laws do not clearly bar such charges, even if the motivation and foundation are legitimately questioned.  We would not want the Justice Department investigating every case where a prosecutor took an excessively broad interpretation of a statute absent a pattern of targeting constitutional rights.  The Supreme Court has allowed for “reasonable” limitations on the right to bear arms.  It is still working through the scope of such reasonable limits.  It is unlikely to reject the basis for a criminal law that bars the threatening use of lawful arms in public.  That leaves an interpretative or “as applied” controversy in cases like this one.  Finally, the St. Louis case is currently at the investigative stage so any move at this time would be likely viewed as a premature.

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Here is the Hawley letter to Barr:

Dear Attorney General Barr:

As you are well aware, the country is facing a moment of significant public unrest and discord. As many Americans are peacefully exercising their constitutional rights to free speech and protest throughout the country, still others are exploiting this moment as an opportunity to sow violence and destruction. Too often, peaceful demonstrations have devolved into tense standoffs or violent riots, with threats and attacks on businesses, innocent bystanders, and law enforcement officers.

One such incident occurred in St. Louis, Missouri, where a family reportedly faced a mass of demonstrators trespassing on their property and threatening them. When help from the police or from nearby security failed to arrive, this family, the McCloskeys, did what any reasonable person would do: they retrieved their lawfully owned firearms and defended their property and their lives. The confrontation was resolved with no one being hurt.

Unfortunately, this family is facing new threats, not from demonstrators but from the local government. St. Louis Circuit Attorney Kim Gardner is now threatening to prosecute not the trespassers, but the McCloskeys, and she is using the powers of her office to target them. Her office has seized their firearms, and police have applied for warrants in the case, with an indictment believed to be imminent.1

This is an unacceptable abuse of power and threat to the Second Amendment, and I urge you to consider a federal civil rights investigation into the St. Louis Circuit Attorney’s Office to determine whether this investigation and impending prosecution violates this family’s constitutional rights. There is no question under Missouri law that the McCloskeys had the right to own and use their firearms to protect themselves from threatened violence, and that any criminal prosecution for these actions is legally unsound. The only possible motivation for the investigation, then, is a politically motivated attempt to punish this family for exercising their Second Amendment rights. Indeed, this is part of a troubling pattern of politically motivated prosecutorial decisions by the St. Louis Circuit Attorney, who has not seen fit to prosecute many violent offenders, 2 and who has expressed hostility to gun rights in the past. 3 Recently, reports indicate that she declined to pursue charges against dozens of individuals arrested during a weekend of riots in the city.4

The Second Amendment is not a second-class right. No family should face the threat of harassment or malicious prosecution for exercising that right. The Department of Justice must ensure that all Americans’ rights are protected from this kind of abuse of power. Thank you for your attention to this matter.

Sincerely,

Josh Hawley U.S. Senator

51 thoughts on “Sen. Hawley Calls For Federal Civil Rights Probe Over McCloskey Investigation”

  1. Jonathan: I agree that there is no basis for AG Barr to open a “civil rights” investigation into the prosecution of the St. Louis couple. Unless, of course, Trump orders Barr to do so. The “castle doctrine” may or may not apply. Since none of has all the facts it is premature for you to speculate. Missouri’s law is one of the least restrictive permitting property owners to use deadly force to protect private property. However, case law in Missouri suggests there are limitations. In 2016 the Missouri Court of Appeals held in State v Whipple that deadly force under the “castle doctrine” can only be used when you reasonably believe such force is necessary to protect yourself from “the use or imminent use of unlawful force”. We have all probably seen the video of the McCloskey’s pointing loaded guns at protesters passing by their house.No clear evidence the protesters threatened the couple with “the use or imminent use of unlawful force”

    Now the reason Republican Senator Hawley has made this case a big deal is because Missouri is a “red” state where the 2nd Amendment is sacrosanct. He thinks that by championing the McCloskey’s cause he can enhance both his standing with the gun-toting crowd back home and his national profile since many are speculating he is considering a run for president in 2024. Even Trump has weighed in on the side of the St. Louis couple. Trump’s poll numbers keep sliding downward so he needs to shore up his support among the 2nd Amendment types. It’s really all about politics because this case would ordinarily be treated as a local matter.

    I think St. Louis Circuit Attorney Kim Gardner, a black woman who has received death threats, should be allowed to do her job without outside interference from academic types or politicians like Hawley, Missouri Governor Parsons or Donald Trump. Even if the McCloskeys are prosecuted and convicted before Trump leaves office they no doubt will be the beneficiaries of clemency–you know, like Roger Stone.

    1. Dennis McIntyre – it is a state crime so they are not eligible for a federal pardon. However, the state governor could pardon them. Their problem is as lawyers, with their Bar Assoc.

  2. White Klan! Black Klan! No Klans at all. We won’t need rifles when all Klans are gone.
    There were spaces between Donald..
    And whatever he said.
    Strangers had forced him to live in his head.

  3. “Federal civil rights violati”ons fall into several categories: hate crimes motivated by bias against such characteristics as race…..”

    The mob clearly threatened the couple because of they were white.

  4. Nancy Pelosi has been in Congress for 33 years

    Her annual salary at most is $193,400

    Her net worth?

    $120,000,000

    Where are HER tax returns?

    @charliekirk11

  5. When the Klan comes out to get you you should run!
    You can halt and shoot back with your gun!
    But if you got no ammo..
    You must really scramble…
    The Klan likes to kill folks on the run.

    White Klan Black Klan, it don’t matter which.
    Killer Klans on the lamb …
    Are made up of nitwits.

  6. It is a civil tights violation – to violate the civil rights of another person;

    It is a civil rights violation even if you do so under color of law – it is arguably worse.

    A bad local law on free speech does not make it not a civil rights violation to enforce that law.

    It would be a legitimate defense against the civil rights claim to assert that the couples use of firearms was not protected by the constitution.
    But so long as their use is constitutional. This constitutes a civil rights violation.

    It is legitimate to expect the DOJ to constrain local governments from using vague laws to violate the civil rights of citizens.

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