Second Amendment

Everybody Is Jumping to Conclusions About This Couple's Show of Force in Response to Trespassing Protesters

Mark and Patricia McCloskey's justification for brandishing their guns depends on facts, not ideology.

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Last week Mark and Patricia McCloskey, the lawyers who brandished guns in response to protesters passing by their house in a private neighborhood of St. Louis on June 28, were charged with illegally exhibiting lethal weapons "in an angry or threatening manner." The merits of those charges, which are Class E felonies punishable by up to four years in prison, obviously depend on exactly what happened that day. But the heated debate about whether the McCloskeys were lawfully exercising their Second Amendment rights has instead been driven by political and ideological agendas.

"It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest," St. Louis Circuit Attorney Kimberly Gardner, a Democrat and the first African American to occupy her position, said when she filed the charges. "And while we are fortunate this situation did not escalate into deadly force, this type of conduct is unacceptable in St. Louis." But after Sen. Josh Hawley (R–Mo.) urged the U.S. Justice Department to open a civil rights investigation of the McCloskeys' treatment, Gardner's measured position gave way to over-the-top, inflammatory rhetoric that reflects underlying political grudges and racial suspicion.

"This is a dog whistle of racist rhetoric and cronyism politics," Gardner said. "This is a modern-day night ride, and everybody knows it." She thus equated Hawley's objections to her prosecution of the McCloskeys with Ku Klux Klan terrorism.

While the McCloskeys are white and many of the protesters were black, Hawley said nothing about race in his July 16 letter to Attorney General William Barr, although he did accuse Gardner of "a politically motivated attempt to punish this family for exercising their Second Amendment rights." The case against the McCloskeys is "part of a troubling pattern of politically motivated prosecutorial decisions," he said, citing Gardner's opposition to a law that eliminated the permit requirement for carrying a concealed firearm and her decision not to charge eight people arrested for rioting during local protests against police brutality. "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," Hawley asserted, "and that any criminal prosecution for these actions is legally unsound."

The couple also has the support of other prominent Republicans. Missouri Attorney General Eric Schmitt condemned the case against the McCloskeys as a "political prosecution." Gov. Mike Parson said he probably would pardon them if they were convicted. President Donald Trump called Gardner's investigation of the couple "a disgrace."

Parson's position on the case is especially revealing, since he admitted he is not familiar with the facts required to determine whether the McCloskeys' actions were legal. The couple "had every right" to brandish their guns, he told reporters on July 14, accusing Gardner of "attempting to take their constitutional rights away." But he also said he was still "reviewing all the available facts" and conceded that he did not "know all the details of it."

Three days later, in an interview with a local radio station, Parson said he was grateful that Trump had promised to "do everything he could within his powers to help with the situation" (although exactly what that might mean is unclear, since the president has no authority over local prosecutorial decisions). Asked if he would pardon the McCloskeys, Parson replied, "By all means, I would, and I think that's exactly what would happen." But he again conceded that he did not know "all the facts," adding that "if this is all about going after them because they…did a lawful act, then, yeah, if that scenario in fact happened, I don't think they're going to spend any time in jail."

Did that scenario in fact happen? It is undisputed that the protesters—who reportedly were taking a shortcut to the home of St. Louis Mayor Lyda Krewson, where they planned to harangue her and demand her resignation for publicly revealing the names and addresses of constituents who had written to her in support of "defunding" the police—trespassed on private property by entering the gated community. Mark McCloskey—who questions the protesters' motivation, saying "the mayor's house cannot be reached through my neighborhood"—claims they broke through a locked gate to traverse a private street, verbally threatened him, and were deterred only by the guns that he and his wife wielded (a rifle and a pistol, respectively).

"I was a person scared for my life, who was protecting my wife, my home, my hearth, my livelihood," McCloskey said in a June 30 interview with CNN's Chris Cuomo. "I was a victim of a mob that came through the gate. I didn't care what color they were. I didn't care what their motivation was. I was frightened. I was assaulted. And I was in imminent fear that they would run me over, kill me, burn my house." He described "hundreds of people" who were "screaming, shouting, angry" as they "broke through the private gate." He said they were "screaming death threats at me and threatening to burn my house and kill my dog and [talking about] what rooms in my house they were going to live in after they killed me."

McCloskey explained that his fear was amplified by his knowledge of how local protests triggered by the May 25 death of George Floyd in Minneapolis had turned destructive and violent before. "When bad things happen, they unpredictably turn really bad really fast," he said. "The reason why they did not get up my steps was that my wife and I were there with weapons to keep them off our steps….They were coming at us until I displayed the weapon, and that stopped them."

On those facts, Hawley is correct that the McCloskeys "had the right to…use their firearms to protect themselves from threatened violence." Missouri law allows anyone to use deadly force when "he or she reasonably believes" it is "necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony." The law also says a person may use deadly force against anyone who "attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person." It adds that people facing such a threat in their own home have no duty to retreat from the confrontation—a rule, known as the "castle doctrine," that applies in every state.

Research by the St. Louis Post-Dispatch casts doubt on at least one element of Mark McCloskey's story. Based on video shot by a protester, reporter Jeremy Kohler found that the gate was unlocked, undamaged, and open when the first members of the group entered the private street. The video, Kohler said, shows those protesters veering away from the McCloskeys' house rather than approaching it, while Mark McCloskey, standing on his front porch, "immediately" begins shouting at them to leave. The man recording the scene objects that the protesters are staying on the sidewalk and asks why the McCloskeys are pointing guns at them. Later on, an organizer can be heard in another video shot by a protester urging the group to stay on the sidewalk and avoid walking on residents' property.

Notwithstanding those instructions, of course, the protesters already were illegally walking through a private neighborhood. "Any pretense of protest, as opposed to terrorism, ended when they broke through that gate," McCloskey said on CNN. Furthermore, as Kohler noted, there is a dispute about ownership of the green area between the gate and the sidewalk, which the McCloskeys claim is theirs by squatters' rights, since they have treated it as part of their front yard for years.

As far as I can tell, no video or audio evidence has emerged to confirm McCloskey's claim that protesters approached his house in a menacing way and made verbal threats. But that does not mean it did not happen, since the record is incomplete.

In this context, Chris Cuomo's attitude during his hostile interview with McCloskey and his lawyer, Albert Watkins, is maddening. "We can talk about the legal rights and the facts," Cuomo said at the outset. "But I want to talk about, not having a right, but whether or not something is right first….How do you feel about becoming the political face of resistance to the Black Lives Matter movement?"

As McCloskey and Watkins pointed out, the couple had no control over how other people, including the president, responded to the incident. While expressing support for the Black Lives Matter message, Watkins noted that it has nothing to do with the justification for the McCloskeys' show of force. That has everything to do with "the legal rights and the facts" that Cuomo so blithely dismissed.

[This post has been revised to correct the date of George Floyd's death.]