There is an interesting ruling in the ongoing litigation of the case of Mark McCloskey. We previously discussed the case, which became a cause célèbre for many on the left and the right after Mark and Patricia McCloskey of St. Louis appeared outside of their home in an armed standoff with protesters in St.Louis. I was highly skeptical of the charges brought by Circuit Attorney Kim Gardner, who was later removed from the case due to ethical concerns. Mark McCloskey later pleaded guilty to two misdemeanors to end the case, but was then granted a pardon. He then sough the return of two firearms. The Missouri Court of Appeals has now prevented that return of the weapons by denying a motion for replevin. The basis for the decision is very interesting: McCloskey is pardoned but still considered guilty.
In McCloskey v. State, Judge James M. Dowd was joined by Judges John P. Torbitzky and Michael S. Wright in ruling that a pardon does not mean that you are innocent, but excised of guilt. As such, the state law on the seizure of the weapons stands. Since McCloskey pleaded guilty to misdemeanor fourth-degree assault and forfeited ownership and possession of the two firearms in exchange for the State dismissing the felony charge, the state law remains in force on confiscation of the weapons:
While we agree that the pardon restored all of his rights forfeited by the conviction and removed any legal disqualification, disadvantage, or impediment, Missouri law is unequivocal that a gubernatorial pardon obliterates the fact of the conviction, not the fact of guilt. Thus, McCloskey’s guilty plea, for which he obtained the benefit of the State dismissing a felony charge punishable by jail time, survived the pardon and importantly, with respect to the issue at hand in this replevin action, triggered the guns’ forfeiture. Therefore, since McCloskey’s guilt remains, it follows that he is not entitled to the return of the weapons….
In his first point, McCloskey argues that the trial court erred because his right to possession and ownership of those guns was reinstated by the pardon which by its terms “restore[d] all rights of citizenship forfeited by said conviction and remove[d] any legal disqualification, impediment, or other legal disadvantage ….” We disagree because the scope of the pardon ends at the obliteration of the conviction.
We are guided by the principles set forth in Guastello v. Dep’t of Liquor Control (Mo. 1976), where the Missouri Supreme Court examined the effect of a gubernatorial pardon on Guastello’s conviction for selling liquor on a Sunday to which he had pleaded guilty. The department denied Guastello’s application for another liquor license based on the statute’s mandate that no person convicted of a liquor law violation could receive a liquor license.
The Guastello Court exhaustively examined three different approaches by courts across the country to the issue of the effect of a pardon and adopted the view that while a pardon obliterates the fact of the conviction, the guilt remains. “Under this view, if disqualification is based solely on the fact of conviction the eligibility of the offender is restored. On the other hand, if good character (requiring an absence of guilt) is a necessary qualification, the offender is not automatically once again qualified—merely as a result of the pardon.” Because Guastello’s conviction was obliterated by the pardon, and the statute only disqualified those who had a conviction, the Court held that the denial of the license was unauthorized. Thus, in defining the scope of a gubernatorial pardon in this way; the Supreme Court drew a critical distinction between the pardoned conviction and the underlying guilt which we find to be dispositive here.
In Bill v. Boyer (Mo. banc 2016), Hill pleaded guilty to and was convicted of felony forgery. He was discharged from probation pursuant to section 549.111.2 which provided that those discharged from probation were “restored all the rights and privileges of citizenship.” { Hill argued that “his statutory restoration of rights is legally equivalent to a governor’s pardon and had the effect of negating the fact of his prior conviction.”} The sheriff had denied Hill’s application for a concealed carry gun permit under section 571.101.2(3) which prohibited granting such permits to those who had pleaded guilty to or been convicted of a crime punishable by imprisonment for a term exceeding one year. In ruling against Hill, the Supreme Court reiterated its Guastello holding that while the statute may have “obliterated” the fact of his prior conviction, it did not obliterate his guilty plea or the fact of his guilt….
In Fay v. Stephenson (Mo. App. W.D. 2018), the court also relied on Guastello in finding Fay, who was pardoned several years after he had pleaded guilty to three felonies, was nevertheless ineligible to run for associate circuit judge under section 115.306.1’s dictate that “[n]o person shall qualify as a candidate for elective public office … who has been found guilty of or pled guilty to a felony ….” Again, the pardon extinguished the fact of his convictions, but not the fact of his guilt by way of his guilty pleas.
We find the foregoing authorities to be applicable here and dispositive. The law recognizes the difference between a conviction and guilt. Here, McCloskey pleaded guilty to misdemeanor assault and voluntarily forfeited his firearms in exchange for the State dismissing a felony charge punishable by imprisonment. Thus, his inability to recover his firearms is not a legal disqualification, impediment, or other legal disadvantage that is a consequence of his conviction. Rather, the permanent forfeiture is a consequence of his guilt. And because only the conviction is obliterated by the pardon and McCloskey’s guilt remains, we find that the governor’s pardon does not entitle him to possession of his forfeited firearms….
Lastly, McCloskey asserts he should have been allowed to try to the fact finder whether his firearms had been unconstitutionally seized in violation of the Second Amendment and further that their seizure was illegal in violation of his right to self-defense in conjunction with the castle doctrine. While McCloskey’s brief presents those interesting issues, none of them are before us. Instead, those issues could have been raised at the trial of the underlying charges had McCloskey not chosen to plead guilty to a lesser charge in exchange for surrendering the firearms at issue here…. “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional lights that occurred prior to the entry of the guilty plea.” …
It is an interesting opinion since many view the pardon as restoring individuals to their prior status and removing past penalties associated with the conviction.
If upheld, the decision shows the cost of a plea when an individual is also seeking a pardon. Many had long called for a pardon to be issued, but governors will often wait for the legal system to play out to some degree before intervening. The pardon does not mean that you will be treated as innocent or that your property will be returned.
Presumably, if a pardon were issued before a plea (if allowed under state law), the weapons would have been subject to replevin. Under federal law, a president can issue a preemptive pardon. That was done by Abraham Lincoln, Andrew Johnson, and Jimmy Carter. There has been much debate for the possible use of a preemptive self-pardon by Donald Trump if he were to be elected in 2024.
The court also dismissed objections to statements by the court mischaracterizing his AR-15 rifle as an “assault rifle,” that the protesters were “peaceful,” that McCloskey threatened the protesters, and other false representations. However, since the gun forfeiture was a legal question, the court found that the statements were immaterial to the issue before it. The judges simply noted that McCloskey could have submitted evidence of self-defense “but instead chose to plead guilty.”
Here is the opinion: McCloskey Decision
I haven’t researched the Va. law position but … under the logic of the Mo. S.Ct.’s (which is apparently shared by other states), felony disenfranchisement would presumably fall into the “good character” bucket, such that a pardon would not result in restoration of a felon’s right to vote. So, if the Va. courts take the same approach, Terry McAuliffe’s pardon of 173,000 released felons should not restore their rights to vote. Perhaps this is something Gov. Youngkin should consider.
A pardon is NOT an exoneration. Get it straight people. The fact the McCloskey’s were pardoned and not exonerated is the real crime here.
Pardon vs Exoneration. Get it straight people. There IS a difference.
“And because only the conviction is obliterated by the pardon and McCloskey’s guilt remains, we find that the governor’s pardon does not entitle him to possession of his forfeited firearms….”
That phrase, “And because only the conviction is obliterated by the pardon and McCloskey’s guilt remains,” seems to conflict with the definition of “Pardon” in Black’s Law Dictionary:
“PARDON — An act of grace, proceeding from [the] power [e]ntrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.”
https://thelawdictionary.org/pardon/#:~:text=Definition%20%26%20Citations%3A,a%20crime%20he%20has%20committed.
Key phrase: “exempts the individual on whom it is bestowed from the punishment the law inflicts”
Guilty plea or not, forfeiture of firearms IS part of the “punishment the law inflicts” and therefore IS negated by the pardon.
@Anon
Nope.
What it means is that his right to own weapons has been restored.
So he can legally buy new guns.
-G
There’s no mention of, or restriction to, a “time” or a “place,” as, by contrast, is the case with legal and constitutional elections.
Arms may be kept and borne at any time and in any place.
Let’s all read this together:
The right of the people to KEEP and BEAR ARMS shall not be infringed.
____________________________________________________________________________
2nd Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Turley: your blatant pandering to the MAGA crowd has reached a new low. It has ALWAYS been the case that a pardon ASSUMES that the one seeking a pardon was GUILTY. Otherwise, if the one seeking a pardon was NOT guilty, there’s nothing to pardon. You DO know better, Turley.
Not relevant.
Never plead guilty.
Gigi
GFY
Wah wah wah. Afraid of big bad guns we MAGA people have the right to bear? Grow the f up.
“We know what the law is, but we do as we please,” said the judges.
Not in this case.
Its a question of if the pardon wipes everything out or just restores the balance and doesn’t ‘reset the clock back in time’.
-G
That makes no sense. What is “the balance” that is “restored” if not his legal rights?
The Law is often totally unrelated to what normal human beings would consider “common sense”. Not sure why, but sometimes it simply seems to be either the result of convoluted overthinking and twisted logic; other times it seems like a scam to keep people under a legal thumb while ensuring that lawyers can stay employed.
Sigh.
It returns his legal rights moving forward, doesn’t rewind time and say… ok you didn’t lose your guns or replace what you’ve lost. But that from now on, you have had your rights restored.
I used the example where you’ve committed murder, and gone to jail.
You get pardoned. It doesn’t erase the fact that you were in jail and that you were prisoner number X… It just means that legally, its as if it never happened.
-G
“I used the example where you’ve committed murder, and gone to jail.”
What if the jail time, say 20 years, is the result of a plea deal. The pardon comes year 10. Do you have to serve the rest of your time because the “pardon ends at the obliteration of the conviction?”
If the fact of the conviction and the punishment you agreed to are two different things, then it seems that the Court’s answer would be: Yes.
@Sam
No. The point is that you can’t erase the 10 years that you’ve already served.
You can’t go back in time and act like it never happened.
You move forward where legally you have a clean slate for that murder. No legal repercussions of that conviction exist.
That’s the point.
Where as if you didn’t plea bargain and was found guilty and 10 yrs later they found that you were innocent and the prosecutor railroaded you… you could sue to get damages for your time served.
A pardon doesn’t allow for that.
-G
This country is gone. Just waiting for the US Dollar to fail and the game is up.
In California if your firearm falls into the hands of police, they will refuse to return it even though it is your property. It is an illegal seizure in broad daylight and there is nothing you can do about it.
Who is going to police the police in a police state?
100% of us live in a bubble, and the information we receive there is often exaggerated, sometimes false. The McCloskey’s silo had conditioned them to believe that a mob of “peaceful protestors” marching through the Castle Gates, crossing the mote around their neighborhood, might just be harmful to self and property. In error (apparently) they took the huge leap of unfounded logic, that after a summer of LOVE where lives and buildings had burned, could be escalating before their very eyes. Those McCloskey’s were so fooled by the narrative they so blindly accepted! Rightfully receiving the recompense that was due them as the violent ones, for the sin of presenting to the peacenik’s their only visual strength, which in their bubbled criminal mind was a simple pufferfish warning to stay off our grass, or else. Crazy world.
What a load of crap. They lived on a private, gated street, which the protesters accessed by breaking the gate. Being privately owned, the street is not open to public use and should have constituted trespassing charges. Given the looting and damages done by protestors, the couple had every right to be worried about violence
Courts think independent means validation of their ideology.
That’s the thing about you Jonathan,
You post comments about ‘The Little Things’ (small cases – lower Courts) as well as the Mainstream things.
Love these lil bitty sidebars.
Just remember s@@tlibs when encountered by a “mostly peaceful” mob, you are supposed to let them burn your house or beat you senseless (i. e. St. Trayvon of Florida) because it’s all for a higher purpose, to promote social justice.
On another note, I’ve met Mark & Patty McCloskey on several occasions and found them intelligent, kind and personable.
This is the lawyereese that makes people hate lawyers
Milhouse notes the guns were surrendered, not taken. So why does he not get the guns back? Sounds like a lack of due process, The govt never did the legal due process to retain ownership.
The law is clear a pardon means the person retains all rights. But not the right to get back guns that were surrendered never seized by a legal process.
Do the McCloskey’s have the right to buy and keep firearms? If they do, what larger message is this legal fight attempting to deliver?
My non-lawyer base line in cases like this is to go back to purpose, and not so much the words, and punctuation, of the Constitution.
The. Constitution is constructed from stem to stern, to protect the people from the Govt. In all areas, the people, not the govt. for damn Sure not Judges, should be the deciding voice.
Cant the Judge see the extended power the Government now can use as leverage to subjugate the people? If the Govt can take keep the weapons without due process, surely the govt are now empowered to take the weapons without due process.
My point. In the end the Right to keep and bear arms is inviolable. Any discretion, definition, word play, should always, 100%, favor the power of people, over the desires of the Government.
As a side note, SCOTUS Justice does not require a law degree. For many years non lawyers sat on the bench. It was not a sought after position. It was boring. Until the justices discovered they could be the self declared, intellectual and moral core, for the United States. Its been down hill since then
@iowan2
This is an interesting case in that it looks at the question of what is meant by a pardon.
Does the pardon reset the clock as if nothing happened, or does it acknowledge something happened, yet resets the penalties only when moving forward.
I mean suppose you kill someone and go to prison. You get pardoned. Does that mean you are automatically compensated for your time in prison, or does that mean moving forward you don’t have a criminal record in the eyes of the court?
Its the latter.
Honestly if the guy wasn’t a lawyer… it would be cheaper to just move on and buy new guns.
-G
Thanks Gumby
I read the ruling that claims all rights are restored. But the govt refuses to restore 2cnd ammendment rights. And/or, loses due process rights as the govt never processed the “taking”
The article didn’t mention whether future ownership of different guns was in question. That would be an interesting point. Regarding the confiscated guns, based on the apparent joy confiscation of private property brings to law enforcement, I’d just kiss those babies goodbye and move on.
@iowan2,
But that’s exactly what the pardon does.
He has the right to go out and buy a new gun.
The only problem is if the Feds don’t update their system to reflect the pardon. So he could be nixed on his 4473 form which would be illegal on the part of the state. (meaning its denying him his 2nd Amendment rights.)
But beyond that… if he was ever confronted by the police for owning or possessing a firearm… he legally can have one.
Time to start jailing Judges who are part of a conspiracy!
Mccloskey is guilty of protecting himself!
We currently have the rule of law like the fascism of Hilter, Stalin, Mao, etc
The decision is a mistake – as the argument if fully examined would show.
The court fixates on the fact that a plea deal was reached.
As a rule we WANT plea deals. The claim by the court that McCloskey could have resolved this by not pleading is a message to people to not plead.
While this particular case is unlikely to be repeated often, it is still wrong for appellate courts to undermine the desire of parties to plead.
I disagree…Democrats will DISARM anyone trying to protect themselves!
Time to START jailing DA’s and Judge’s who ignore and break the law
John Say, I like the angle you took on this issue, look at it as a public policy issue. We don’t discourage people for apologizing by having it used in court, we don’t allow a contract for sexual favors and other “public policy” reasons for courts consider ramifications of their decisions. As an example could the court have demanded the the McCloskys renounce their right to freedom of speech in order to have the felony charge dropped? Could the court have required that they serve as slaves for the “protesters” for a year or two? Gun ownerships is Constitutionally protected and you cannot be required to waive your rights.
With Democrat DAs and the DOJ going after conservatives around the country we cannot punish people that are FORCED BY CIRCUMSTANCES to take a plea. Look what they did to Michael Flynn. After years Flynn was able to prove that he was forced to take a plea and even then the judge in DC wouldn’t let go of him after all other courts exonerated the guy.
Maybe the reasoning of the MO Court is sound, but when you have a DA like Kim Gardner going after the defendants there needs to be a legal remedy for the judicial overreach or outright persecution.
@John Say,
Nope. Courts got it right.
See my comment to Iowan2 above.
The pardon doesn’t wipe out the past, but just the effects of it on you as we move forward.
He took the plea to remove risk and to remove the costs of litigation.
I wonder if he can overturn the case against him. Not that it matters and wouldn’t really change a thing.
Communism. Coming to a neighborhood near you.
I agree with the result, but not with the reasoning. The result is correct for a much simpler reason: Had the forfeiture been a penalty for McCloskey’s misdemeanor conviction, then the pardon would have reversed it and he’d be entitled to get them back. But it wasn’t. He voluntarily forfeited the weapons in return for the felony charges being dropped. He then pleaded guilty to a misdemeanor and was later pardoned. Since he was pardoned he has every right to buy new weapons; but the ones he voluntarily gave away were no longer his property, and the pardon couldn’t magically make them his property again.
So…make law enforcement get a warrant and take them? Nothing voluntary? There’s always a trap being set it seems.
I think this point is going to become more and more relevant as more and more politically motivated charges are being brought which force people to plead guilty if they don’t want to go bankrupt and/or spend years in prison. J6 prisoners are held in solitary confinement and routinely tortured. Jake Lang has been in prison, without trial, for almost 3 years. None of this is the least bit constitutional. Kim Gardner was removed from the McCloskey case for being deeply partisan as well as corrupt, let’s call it what it is, and yet now the McCloskeys are stuck with this guilty plea for the rest of their lives. Look at Sidney Powell. She was doing what lawyers do and faced losing her livelihood as well as years in prison. She pled guilty. Is she really guilty? Does she believe she’s guilty? I don’t think so, but Sidney Powell is a lady in her 60’s. Prison would kill her. Nobody has the resources to fight the entire weight of the US government if it decides to put you in its crosshairs. If it is determined that a plea bargain was reached unfairly and/or under duress, those guilty pleas should be expunged. “There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.” There is no doubt in my mind that all of these political persecutions will eventually be reversed and the charges and guilty pleas expunged. The real question is what redress will be awarded, once this country emerges from the mire in which it has voluntarily plunged in its zeal to “get Trump,” (which includes the McCloskeys). Years of people’s lives have been stolen. Money has been spent on fruitless defenses in cases where the judges made up their minds before the trial even began – again, reminiscent of the Nuremberg trials. There is no amount of money that can compensate for that, but I have no doubt that taxpayers will end up paying, as we always do, for a system of justice that has turned itself into a game of Russian roulette that always points to Trump. My hope is that at least a few judges will have enough sense of self-preservation to realize that this state of affairs cannot and will not continue forever, where it’s okay to burn down a city as long as you have a D after your name, but not okay to defend yourself from the mob. When the country comes to its senses, as it inevitably will but only when dangling from the precipice, there will be an accounting. So this would be the time, for those who have been caught up in the madness, to begin to quietly reverse course in the direction of justice rather than partisanship.
Courts are supposed to be immune to polls and politics – but I would not presume that they are.
The weaker Biden is, the stronger Trump is. The more the left blasts him and fails, the more that courts are likely to slowly shade decisions away from this woke nonsense.
The CO SC decision was a major stupid decision. It plays right into Trumps arguments that this is all political.
It plays into the argument that democrats can not win at the polls.
It makes Republican impeachment efforts stronger, and we even have left leaning jurists and scholars saying not only does this have to be overturned – but it must be overturned 9-0
The point I am making is not about the merits of the decision – it is about the politics backfiring.
Slowly we are likely to see the courts, the media, our institutions move towards Trump as the next president as a Fait acompli.
Then they will be trying to figure out how to survive and even thrive in MAGA II.
Not only are biden and dems prospects bad right now – the likelyhood of their getting worse is greater than the likelyhood of improvement.
John Say,
Well said and I agree.
New polls show Blacks, Hispanics, Asians and even some Jews are abandoning Biden and the DNC.
1000 thumbs up!
Well, hopefully he can just go out and buy several new guns.
I am sure the appeal cost far more than the guns – the guns were not the issue.
The guns ARE THE ISSUE. To the govt. This ruling is additional leverage the all powerful govt can use against the People.
Not the way constitutional issues should trend.
Minorities were supposed to use their political power to exercise freedom, not tyrannize white people, but this is what has happened.
The Woke mind virus primarily infects white people not minorities – while there are exceptions, overall we are seeing an escalated movement of minorities AWAY from the left.
Wokeism like much of the ideology of the left is self contradictory.
One one hand it claims that a wide variety fo minorities are so week they need special protections, while at the same time preaching equality.
Unsurprisingly many minorities do not like being told they are inferior and need special protection.
Affrimative action does not work – because it is self contradictory. We want to the greatest extent possible for the system to be blind to our differences. Fixating on mintory stats and claims that some minority needs special protection is telling them they are inferior.
John Say,
I would only disagree with you about minorities with Asian minorities. They see the leftist Democrats as punishing them for being successful. There is an entire generation of Asians who want to expand on the MAGA agenda: https://www.thefp.com/p/asian-american-political-candidates-go-maga
sorry but find me a successful safe black run country?