The Charge Against St. Louis Couple for Defending their Home

AmmoLand ^ | 21 July, 2020 | Dean Weingarten

[marktwain]

Kim Gardner, the radical St. Louis prosecutor, has asked for and obtained a warrant to seize the rifle and pistol used to defend a St. Louis couple's home, where hundreds of protesters trespassed and screamed at them on Sunday, 28 June, 2020.

It appears the charge used by far-left St. Louis Circuit Attorney Kim Gardner, to confiscate McClosky's firearms, is Missouri statute 571.030, Unlawful use of weapons. Bold added for emphasis:

*571.030. Unlawful use of weapons — exceptions — penalties. — 1. A person commits the offense of unlawful use of weapons, except as otherwise provided by sections 571.101 to 571.121, if he or she knowingly:

(1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use into any area where firearms are restricted under section 571.107; or

(2) Sets a spring gun; or

(3) Discharges or shoots a firearm into a dwelling house, a railroad train, boat, aircraft, or motor vehicle as defined in section 302.010, or any building or structure used for the assembling of people; or

(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or

There are exceptions. Number 5 seems to apply.

5. Subdivisions (3), (4), (5), (6), (7), (8), (9), and (10) of subsection 1 of this section shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031.

[DoodleDawg]

They're going after them on clause 4: "exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner". The article also references § 563.031 of the Missouri statutes. That's the Missouri castle doctrine. Section 2 of that says, " A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, rape, sodomy or kidnapping or serious physical injury through robbery, burglary or arson." So the first problem the defendants may have is showing reasonable belief that use of force was needed to protect themselves. The second problem is that unlike a lot of other states, the Missouri statute contains the requirement to withdraw from the encounter and to communicate that to the aggressor. If the aggressor persists then deadly force can be used if the situation justifies it.

We can all argue whether prosecution is justified; if this wasn't an election year then I doubt charges would have been filed. But the way the law reads the evidence seems to be against the defendants.

[dhs12345]

Yes. There is justice.

[FtrPilot]

The State AG has asked for the judge to dismiss the charges.

Strongly worded letter...typical Republican response.

What the State AG should do is take the case away from the district attorney and assume responsibility for the investigation...the same way that the Minnesota AG did in the George Floyd case. Then simply dismiss the case and reprimand the district attorney.

[marktwain]

So the first problem the defendants may have is showing reasonable belief that use of force was needed to protect themselves. The second problem is that unlike a lot of other states, the Missouri statute contains the requirement to withdraw from the encounter and to communicate that to the aggressor. If the aggressor persists then deadly force can be used if the situation justifies it.

The requirement of reasonable belief is easily met from the agreed on facts in the case. A crowd of unruly agitators broke into private property.

The clearly meets disparity of force standards, especially when coupled with the nationwide understanding that "protests" become violent and deadly very quickly.

Missouri law has no requirement to retreat on their own property.

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.

They would only need to convince one juror that they were in reasonable fear. Probably 80% of the state already believes it to be true, as do the Governor and Attorney General.

[Attention Surplus Disorder]

If I were them, I’d get the most assiduous attorney I could find to file a $200 million lawsuit against the county for abridgement of civil rights and malicious prosecution.

[ripnbang]

If the law provides for open carry, then too bad for anyone “calling you out”. In this case, in my opinion, the McCloskeys, especially Mrs., are partly responsible for their day in the limelight because of the way they handled their firearms. That being said, the law provides for self defense and they were doing that. The DA knows it and she knows she’ll lose the case based on its merits, let alone any pending pardon. She’s not interested in a conviction, she’s in a tight re-election campaign and is using this incident as an opportunity to boost her Democrat cred and be “trending” on Twitter.

[sickoflibs]

RE:”As I understand it the governor has already pledged to pardon them so the whole thing is a moot point”

It's been argued that accepting a pardon is the same as pleading guilty and they would never be able to own guns again convicted or not.

[Leaning Right]

As I see it, the problem was with the wife. Unlike with the husband, the wife actually pointed her pistol. I don’t know how far away the protesters were. Were they on her property, and advancing towards her?

If not, pointing a weapon is usually gonna get you in a bit of trouble. Regardless, they should both be pardoned. Our side needs to win one.

[marktwain]

They would only need to convince one juror that they were in reasonable fear. Probably 80% of the state already believes it to be true, as do the Governor and Attorney General.

I was mistaken about the above. It is the prosecutor who must prove they were *not* in unreasonable fear in Missouri law.

The burden of proof is on the state, once the defendant has raised the issue of justification

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.

As is clear from the statute, the "duty to retreat" is null at any place in Missouri where the person claiming defense has a right to be.

Such is the hazard of reading statutes.

So many exceptions, so much detail.

[GreenHornet]

As I understand it the governor has already pledged to pardon them so the whole thing is a moot point

Question: If the McCloskys are convicted on this charge, they will have been convicted of a felony, and will never be allowed to own firearms again. If the governor subsequently pardons them, it spares them from jail time, but does the felony conviction still remain in place?

[SoCal Pubbie]

When exactly did the defendants use deadly force?

[nonsporting]

The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime,

I’d like to see this law exercised even once. I’ve been waiting since 1992.

This is a clear misapplication and an abuse of power intended to punish and chill the right of self defense recognized by this statute.

[Bon of Babble]

Zero Hedge reports:

St. Louis Prosecutor's Office Busted Altering Evidence; Reassembled Non-Operable McCloskey Pistol To Classify As Lethal

The pistol Patricia McCloskey waved at protesters who broke down a gate to trespass on their private street was a non-operable 'prop' used during a lawsuit they were involved in, so a member of Circuit Attorney Kim Gardner's staff ordered the crime lab to disassemble and reassemble the gun - allowing them to classify it as "capable of lethal use" in charging documents filed Monday, according to KSDK5.

[V_TWIN]

From Missouri DOC:

Full Pardon – A full pardon does not remove the conviction from the individual’s criminal record. A full pardon restores all rights of citizenship and removes any disqualification or punitive collateral consequence stemming from the conviction without conditions or restrictions.

https://doc.mo.gov/divisions/probation-parole/executive-clemency

[caww]

If it’s true that a member of Att. Kim Gardner’s staff ordered the crime lab to disassemble and reassemble the gun - allowing them to classify it as “capable of lethal use”, there’s people who need to go down for that!

[VanShuyten]

“ The pistol used appears to have been inoperable.”

That makes no difference if the charge is brandishing to intimidate. In this case, however, after the mob had broken through the iron gate into private property, self-defense and fear of imminent bodily harm will overrule any brandishing charge.

[ridesthemiles]

The MOB broke into the GATED COMMUNITY.

How come no one wants to refer to that ORIGINAL act???

NONE of them belonged anywhere near that house or all of the others inside that GATED COMMUNITY.

[ridesthemiles]

That couple lived inside a GATED COMMUNITY. Technically, every home owner inside that community owns the streets, sidewalks, etc. IT is ALL PRIVATE.

The MOB broke down a gate & entered, threatening EVERY single homeowner there.

MY house is at least 70 feet from my totally perimeter fenced property line. I WILL defend my property from ANY intruder.

[sickoflibs]

Thanks for the clarification

[Pollster1]

The one virtue of open carry being legal is that it stops America’s enemies from prosecuting concealed carriers who print or accidentally expose their weapons. Otherwise, I am a big fan of denying thugs the information on who is armed.