Missouri 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