This article is not legal advice. Please consult an attorney with regard to questions concerning legal advice.
By now everyone has seen the video footage and endless memes regarding the St. Louis couple who guarded their property using firearms.
Some on the side of 2nd Amendment rights have hailed the McCloskeys as heroes while some on the other side of the political spectrum see them as poster children for white privilege.
I see their situation as a number of different things. I see them as targets of malicious prosecution. I see them as showing gun owners the need for gun safety training. But most importantly I see them as a dire warning to all legal gun owners.
If you are a legal gun owner, you NEED to understand all of the gun laws in your jurisdiction and know them WELL. If you don’t, those same gun laws can and will be used against you to confiscate your firearms and land you in jail.
The state of Missouri has some pretty relaxed gun laws when you compare them to Illinois for example. Without going into extreme detail, you can pretty much carry, open or concealed, any rifle or handgun anywhere you want with some exceptions such as schools, government buildings, hospitals, airports, etc.
In the case of the McCloskeys, you had a group of protestors who entered a private street without permission and broke through a closed gate in order to do so. Say what you want about 1st Amendment rights (and I am a big proponent of such rights) it doesn’t allow a person to commit criminal trespass to land or criminal damage to private property.
Now, I have not seen the entire video of the situation or all of the videos that were probably taken of the incident or interviewed any witnesses or even spoken to the McCloskeys directly so there may be more evidence coming forward so I can only speak on what has been reported in the various media outlets.
As far as I know, there were no arrests of protestors and the McCloskeys were not arrested at the scene. I don’t believe they or any protestors were harmed and I believe that the mayor was the ultimate target of the protest and the McCloskey property was just one property that was on the route to the mayor’s residence.
So basically at the end of the protest, there were no arrests made for the crimes of criminal trespass or criminal damage and the McCloskeys were legally defending their property and lives according to Missouri state law, or so they thought.
Shortly after the incident the St. Louis Circuit Attorney, Kim Gardner, issued this statement:
“I am alarmed at the events that occurred over the weekend, where peaceful protesters were met by guns and a violent assault. We must protect the right to peacefully protest, and any attempt to chill it through intimidation or threat of deadly force will not be tolerated.
My office is currently working with the public and police to investigate these events. 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.”
Keep in mind that the 2nd Amendment was never mentioned, the crimes committed by the peaceful protestors were never mentioned and the part that should send chills up the spine of every legal gun owner was, “..will use the full power of Missouri law to hold people accountable”.
The Attorney General of the state of Missouri came out and said that the McCloskeys did not violate any laws. Or did they?
The answer came on July 10th when authorities issued a search warrant for the search and seizure of the two guns that the McCloskeys were holding in the video. The pistol that Mrs. McCloskey was holding was already in the custody of their attorney and was allegedly a non-working gun. (Why someone would be holding a non-working gun is beyond me but o.k.) The rifle that was held by Mr. McCloskey was seized by authorities.
In order for a judge to sign a search warrant, at least in Illinois, there has to be shown probable cause that a felony violation of the law has been or is about to be committed. So what law was possibly violated in defending yourself and your property?
Is it possible that either Mr. McCloskey or Mrs. McCloskey were people who were not legally entitled to possess a weapon in the state of Missouri? It is possible. If either of them is a convicted felon or not U.S. citizens, or if either of them is addicted to illegal compounds or have been deemed mentally incompetent or have been committed to a mental institution are just a couple of reason. It is possible but if any of these were true there probably would have been an arrest warrant issued as well.
What then? Well they could be looking to charge them with a violation of Missouri’s Unlawful Use of Weapons statute under Missouri Statute 571.030 subdivision(4)
Subdivision (4) states that 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 exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.
Well, the video shows them pointing weapons at one or more people with their fingers on the triggers and they don’t look very happy and might actually be considered “angry” so yep I would say that they have probable cause to believe a crime has been committed so yes a judge would sign a search warrant for this.
But wait, if you look further down the statute you see that in paragraph five it states that subdivision (4), along with others, shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031.
Hmm… it seems like they were acting in defense right? Well, that might be for a jury or a judge to decide after they are indicted for the felony but let’s look at it anyway.
Section 563.031 talks about physical force and deadly physical force to protect persons. The McCloskeys did not use physical or deadly force but they did, conceivably, use the threat of deadly force by brandishing their weapons or by “displaying them in a threatening or angry manner”
So what does it say about deadly force?
Well in paragraph 2 (3) it states that a person may use deadly force 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.
Well thank goodness they didn’t actually use the deadly force but it seems that if they did actually shoot someone they may have been justified with one caveat and this is the important part that could land you in prison.
In paragraph 5 it states: 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 force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.
So what does all this mean? It means that if you consider yourself a legal and responsible gun owner then you better understand all of the gun laws in your country, your state, your county, and your municipality and realize that even in a state like Missouri, which has some pretty relaxed gun laws, you can have your house searched, your guns seized, and even be indicted for a felony for not keeping the muzzle of your weapon pointed downward until needed.
In fact, two simple gun safety rules can prevent most malicious prosecution. These were two of many taught to us at the police academy.
- All guns are always loaded.
- Don’t let the muzzle of your weapon cover anything that you aren’t willing to destroy.
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