Should Elected Prosecutor Be Disqualified for Highlighting Pending Criminal Case in Election Fundraising?

That's what a motion in the St. Louis Mark & Patricia McCloskey case argues.

|The Volokh Conspiracy |

You can see the motion to disqualify Kim Gardner here. I'm not an expert on the legal ethics question here, but here are some quick observations:

  1. Elected prosecutors are, after all, elected officials who must run for office and raise money.
  2. The premise of having elected prosecutors is that prosecutors should be accountable to the people, and the people should consider the prosecutors' accomplishments and stands on prosecutorial decisions.
  3. Prosecutors aren't judges: They are supposed to represent one side in a case.
  4. At the same time, a prosecutor is supposed to be "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." They must be prepared, for instance, to drop a case when they find evidence that would justify that—something that would be especially hard for a prosecutor to do once she makes a pending case the subject of a fundraising appeal such as this.
  5. This might explain why one of the cases the motion cites, State v. Hohman (Vt. 1980) (overruled by a later case but only as to unrelated matters), calls for disqualification in such situations, reasoning that "The awesome power to prosecute ought never to be manipulated for personal or political profit.

I'd love to hear more, though, from people who have studied the ethical rules governing prosecutors more closely than I have.

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  1. I think the answer is yes. Missouri uses the Model Rules of Professional conduct, which has specific guidelines about prosecutorial statements:

    Missouri Rule 4-3.8(f):

    “except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused, and exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 4-3.6 or this Rule 4-3.8.“

    The comment 5 states:

    Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).

    Here, referencing a specific case in a campaign email: 1, is not for a legitimate law enforcement purpose and 2, will heighten public condemnation/opprobrium of the accused, particularly since the email talks about how privileged the defendants are and highlights their support from the prosecutors political adversaries.

    She should be disqualified and probably shouldn’t be a prosecutor at all.

    1. Interestingly, may state’s Rules of Professional Conduct are nearly identical, also 3.8(f). https://www.in.gov/judiciary/rules/prof_conduct/#_Toc461714685

      IANAL but my read is her campaign statement appears to have crossed the threshold.

    2. I concur on the rule and I concur it’s a violation. What is your support that the remedy is disqualification?

    3. It’s a campaign issue because what to do about being pressured to drop a case is an important issue specific to the job of district attorney.
      If the DA is prosecuting some organized crime figure, and they (the organized criminals) attempt to use criminal means to influence the prosecutorial discretion, you want to know that the DA will exercise independent judgment, dropping the case only if it’s a waste of resources.
      Conversely, you might want to know that a DA is responsive to public sentiment regarding individual prosecutions, and will drop a prosecution if enough of the public prefers that the case not be pressed.

  2. I know it’s probably wasted effort on a US-based blog, but can I just raise my hand and question this one?

    Prosecutors aren’t judges: They are supposed to represent one side in a case.

    Can we please at least occasionally pretend that prosecutors should represent justice, rather than trying to seek a conviction at all costs?

    1. It’s in the comments to the Model Rules of Professional Conduct which pretty much every state accepts:

      “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Rule 3.8 Comment 1

      1. Two things:

        Is there any reason that rule is followed in any way other than in the breach? The adversarial system only really works if you have people like British barristers with strong professional ethics and experience on both sides. In the US it’s bad enough before you throw elections in the mix, at which point it becomes completely toxic.

        My comment was hasty, since prof. Volokh did discuss the theoretical obligation to serve justice. I would have deleted it if only I could.

        1. “Is there any reason that rule is followed in any way other than in the breach? ”

          No.
          The sovereign’s interest is theoretically doing justice rather than winning convictions.

          The prosecutor’s personal interest is in racking up wins rather than serving justice.

          Personally I don’t think electing prosecutors makes any difference here.

          Let’s say the government hires all prosecutors as civil servants. How is a government supposed to evaluate the performance of individual prosecutors? Conviction rate is the only readily determinable objective metric that can be used.

          1. I know of exactly 0 state, federal, or local prosecutors offices that even track individual conviction rates, much less factor then into professional advancement.

            1. Does that mean they get points for the mistaken, botched, or outright malicious prosecutions that *don’t* result in a conviction?

              Somebody must be counting something. What is advancement based on?

            2. I am unconvinced you have any knowledge about how state, federal, or local prosecutors offices handle professional advancement of career prosecutors.

              1. My knowledge is based on career spent practicing criminal law, during which time I’ve come to know dozens of career prosecutors in offices across the country, including supervisors at pretty much every level.

                What, pray tell, is the basis for your knowledge?

                1. What pray tell then are they measuring for “professional advancement” for career prosecutors?

                  Either there is no professional advancement at all, or they are measuring something.

                  Conviction rate is the only thing that stands out as being a viable objective measure.

                  Everything else is going to crash into subjective value judgements.

                  1. lack of overturned convictions might be a factor.

                  2. “What pray tell then are they measuring for “professional advancement” for career prosecutors?”

                    Time in service, I would imagine, would be the biggest one for civil service prosecutors. The guy who’s worked there for 8 years has seniority over the lady who’s worked there for 3 years, and either of them can give directions to the new hire.

                2. “What, pray tell, is the basis for your knowledge?”

                  Mine comes from having an acting United States Attorney teach Constitutional Law at my law school. Learned a lot about how the AUSAs worked. For extra fun, we had a nationally-known case break into the news in the middle of the semester.

                  On the other hand, not one semester of criminal law.

    2. Can we please at least occasionally pretend that prosecutors should represent justice, rather than trying to seek a conviction at all costs?

      Could the pretence take the form of stating, say

      ” At the same time, a prosecutor is supposed to be “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done” ?

      which as it happens, is Senor Volokh’s very next sentence after the one you complained of.

      1. I see you plead haste. Fairy Nuff.

        1. Fairy Nuff? Sounds either magical or a bit perverted.

          1. It’s a two thousand year old joke told in kindergarten.

            “I’m a fairy. My name is Nuff. Fairy Nuff.”

            I still like it.

    3. Martinned: I thought I’d tried to capture the complexity here in items 3 and 4:

      3. Prosecutors aren’t judges: They are supposed to represent one side in a case.

      4. At the same time, a prosecutor is supposed to be “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” They must be prepared, for instance, to drop a case when they find evidence that would justify that—something that would be especially hard for a prosecutor to do once she makes a pending case the subject of a fundraising appeal such as this.

    4. You need to prioritize three goals, not two. Reorder as appropriate:
      1. Serve justice.
      2. Get a conviction.
      3. Get re-elected.

    5. After all these years it finally happened. I agree 100% with Martinned on an issue.

  3. As the email states “peaceful black lives matter protest”

    “right to wave Guns in front of people who were not threatening”

    Not even close to peaceful
    Since when is a large mob Trespassing, knocking down gate to enter private property considered “non threatening”

    1. Probably not threatening enough to use deadly force that would have resulted in a mass killing if actually deployed.

      1. How do you get from threatening to use deadly force, (Which they certainly did do, by brandishing prop guns. But which is actually legal to do when threatened with imminent harm.) to threatening to use it on a scale that would qualify as a mass killing? Did they say, “Get off my lawn or I’m going to mow you all down, even if you flee!”?

        Not in any account I’ve heard.

        1. Well for one, the wife pointed the gun at people with her finger on the trigger. Had she started shooting it likely would have been indiscriminate and not directed at any particular person. If he starred shooting a semi-automatic rifle into a crowd it would be like every other mass shooting with similar weapons: it would be indiscriminate and probably hit a lot of people who are retreating. You think he’s actually just going to fire into a crowd and not hit non-threatening people?

          Anytime you point a gun you are threatening deadly force. No matter what you say. Had they actually deployed that, they would be mass murderers. They could never establish that every person they killed were threatening them with deadly force in particular.

          1. LTG : Well for one, the wife pointed the gun at people with her finger on the trigger. Had she started shooting it likely would have been indiscriminate and not directed at any particular person.

            Maybe it’s just me, but I should have thought that indiscriminate shooting not directed at any particular person – particularly with a hand gun – was waaay less likely to hit anyone than the other kind. But anyway, this :

            https://www.ksdk.com/article/news/local/gardner-staffer-ordered-crime-lab-to-reassemble-patricia-mccloskeys-gun/63-be112149-d06c-4f54-a225-6545e74b5c2d

            alleges that Mrs McCloskey’s gun was not capable of being fired.

            Though of course you should never believe what you read in the newspapers. No doubt the truth will out, should the matter ever come to trial.

            1. Those reports seemed to me having the implication that the McCloskeys had purposely reassembled it unfunctional before turning it in. There certainly was plenty of time. Of course, the burden of proof is on the state. but innuendo in front of a jury is hard to undo.

              1. Do you have another report that suggests that ?

                The one I linked says they claim to have purposely reassembled it to be non functional long before the gun waving incident, not between the gun waving incident and the disassembly by state authorities.

                1. I meant that the general tone of the prosecutor / police statement led me to think they were implying the reassembly was done between the incident and the police collection. Innuendo.

                  1. I wonder how they would get evidence of that, absent a confession. And looking at the remarks by the defense, it doesn’t look like they’ve got a confession.

                    If the newspaper has the report by the firearms guy, and it says “but we could tell from the lack of dust on the sproggetty thing that it must have been disassembled and reassembled in the day or two before it arrived in our lab” then you’d expect the newspaper to mention that.

                    1. “I wonder how they would get evidence of that”

                      I wonder if they would need evidence of that. The testimony would go “then they pointed guns at us.” I don’t think the prosecutor generally follows testimony like that by asking “and how did you know the weapon was deadly?”

                      The first and second rules of firearm safety are:
                      1 the gun is always loaded, unless you just unloaded it.
                      2 never point the gun at something unless you intend to kill it.

                2. But they are unlikely to be able to prove that in court. Maybe they could ask the McCloskys on the stand. Oh wait. 5th Amdt self incrimination. They can’t be forced to testify. The problem is that the firearms expert will testify that the firearm was inoperable when he got it, and made it operable. He can’t say anything else. Prosecutor will of course try to argue that they must have made the gun inoperable. But, since this isn’t Ohio, the burden of proof is on the prosecution to disprove inoperability beyond a reasonable doubt.

                  1. “But they are unlikely to be able to prove that in court. Maybe they could ask the McCloskys on the stand. Oh wait. 5th Amdt self incrimination. They can’t be forced to testify.”

                    “The gun was inoperable” is a defense. It would be up to the defense to raise this claim, and prove it. What the prosecutor has to prove is that A) the defendant (not somebody else) B) pointed a weapon at somebody . The claim that threatening use of force was privileged self-defense also has to be raised by the defense, not precluded by the prosecution.

            2. Handguns are pretty inaccurate, particularly in the hands of an untrained person under stress. Indeed, police using handguns, who are supposedly more trained, hit bystanders when they open fire.

              1. Not just bystanders, but property and some poor individual in their home a couple hundred yards away. From what I’ve seen and heard, police on average are not great shots (not much range time or real-life-scenario shooting accuracy tests required, IIRC), and when under the immense pressure and stress of encountering an armed suspect, a lot of lead ends up somewhere other than in the intended target. Now the church member in Texas volunteering as armed security who took the shooter down with a first shot head shot at 30 yards (or so)? That was impressive.

                1. There are some people who are more skilled than others who can probably use handguns more effectively in a life or death scenario like that. And not to detract from the guards bravery/skill, but there is also some right place right time luck involved to make sure those skills can be used.

                  But for most people, handguns are not the best weapon to defend oneself or property with without risking causing more harm overall.

                  1. I’m curious what weapon you prefer. For home defense, I agree that handguns are not the best in most situations for defense of property (but if you live in a high-crime area and are taking out your trash, going to get the mail, walking to your car, that’s going to be the best you have in most scenarios). I have a 12-gauge for home defense (I think an AR is superior in many ways, but I live in a place where you can’t buy one in anything resembling its intended design).

                    But for defense of person? A handgun can’t be beat as an on-person weapon. I mean, what are the alternatives? (Note to the Rev. and others: we’re talking weapons here. I absolutely respect anyone who feels that owning/carrying a firearm is more dangerous than it’s worth.) I have a permit to conceal carry (don’t live in a constitutional carry state), and I have my 9mm at 4pm IWB most places I go, as a matter of habit now. I pray I never need to use it, and that if I ever did that my training/practice would be sufficient. But I don’t see any better options than a handgun *if* one decides a weapon is necessary (so again, leaving aside those who believe having no weapon is preferable). Can’t carry a long gun. Certainly don’t think a knife is preferable. Are you thinking stun gun or taser or pepper spray? I’m curious. Thanks.

                    (Apologies for any typos. Not proofreading and no edit button.)

                    1. But returning to my point and LTG’s attempted refutation of it, assume one not particularly well trained and nervous housewife, standing say 15 to 30 feet from a group of eight protestors, themselves spread out say 50 feet (side to side.)

                      She fires six rounds. Would you expect her to hit more protestors

                      (a) if she aims at particular people, or
                      (b) if she just fires indiscriminately without aiming ?

                      Are there any combinations of how many people, range, grouping of people, where you woul dexpect her to do better by not aiming than by aiming ?

                    2. Well, I am fairly anti-gun so it wouldn’t be a gun.

                      But assuming I felt one was needed, I think a shotgun is best for home defense because you likely won’t miss an approaching target. When I went to the ATF range during an USAO internship, all the agents said shotgun for home defense.

                      I can’t deny that in terms of portability, concealment, and comparative ease of use, a handgun is theoretically the best for personal defense. I haven’t really thought enough about how easy it would be to deploy a chemical irritant or a taser comparatively, but I think they could be better or worse depending on the scenario. Not useful if someone has a gun and is actively shooting, possibly more useful if someone dangerous is closely approaching but you don’t know about their armed status.

                  2. Not sure why they system won’t let me reply to your later reply, but this responds to the aiming vs indiscriminate shooting question you posed. In either scenario, I would expect the results to be the same (assuming her indiscriminate shooting was in the general direction of people, not the sky or ground). Meaning, even if she aimed at a particular person, from 15-30 feet away I would expect her shots to be at least a couple feet off target, maybe more. If she hit her intended target, it would probably be through luck. I think most people don’t realize how hard it is, and thus how much range time and practice it takes, to shoot a handgun accurately (certainly at 10 yards plus). I’m talking about aiming center mass and actually grouping one’s shots on the torso (not even talking about tight groupings). And that’s on a range with no threat aiming or running towards you, no chaos, no distractions, and being able to take as much time as you want to aim and use your sights. Now transport that person to a fluid, chaotic situation? Unless someone is well trained, their shots (even when generally aimed at someone), may hit anywhere in a 4-5 feet horizontal and vertical range at 10-15 yards, I suspect, and even more if the target is on the move. It’s often just happenstance as to who or what gets hit. Bottom line: training, training, training, practice, practice, practice.

                    1. 1. Thank you

                      2. The maximum number of sub threads appears to be nine. If you want to reply and there’s no Reply button, you’ve hit the limit. (Or the thread is too old, or the system is having a bad day.)

                      So you can then reply, by scrolling up to the post to which the comment you wish to reply is itself a reply, click on Reply and then your Reply will appear at the bottom of that last little subthread. But so long as you don’t take too long, it should appear immediately below the comment you’re replying to.

                      So if you wanted to reply to LTG’s 30 July 12.13pm reply to your post of 11.38am, just reply to your own post and your new comment should appear immediately below LTG’s on the same indentation.

                      3. Sometimes the system puts your comment in a totally random position, just to annoy you.

                    2. “the aiming vs indiscriminate shooting question you posed. In either scenario, I would expect the results to be the same (assuming her indiscriminate shooting was in the general direction of people, not the sky or ground). Meaning, even if she aimed at a particular person, from 15-30 feet away I would expect her shots to be at least a couple feet off target, maybe more. If she hit her intended target, it would probably be through luck.”

                      What might change is exactly which people or things were hit. In particular, a person standing behind the array of targets is probably more likely to be shot if the weapon is fired in panic and indiscriminately; part of aiming is deciding what to shoot at, and part is deciding what to avoid shooting at. Take a look at some shooting videogames. You’ll find that nearly all of them will offer targets that penalize the player for shooting them, ie, hostages or bystanders that are distinct from the bad guys. NES Duck Hunt is the only one I could think of, off the top of my head, that doesn’t. It won’t let you shoot the &*^^(*& dog.

                2. Don’t forget that the target is (a) moving and (b) shooting at you.
                  Big difference from shooting at paper targets on the range.

                  I once heard of an officer who believed he’d emptied his weapon but never took his safety off, it was his partner who killed the perp. Stress does things.

                  1. Epinephrine (AKA adrenaline) has several effects on human cognition. It makes people faster, stronger, and more focused. It also inhibits analytic reasoning and short-term memory retention. This is why people who are expected to function effectively while under the effects of epinephrine have to train extensively… the epinephrine blocks deep, analytical reasoning so all the thinking has to be done in advance and practiced, so that acting appropriately is a matter of selecting the correct habitual action rather than dynamically figuring out what needs to be done.
                    This is true of combat soldiers, firefighters, and law-enforcement, to a lesser extent, to professional athletes, as well.

                  2. “I once heard of an officer who believed he’d emptied his weapon but never took his safety off, it was his partner who killed the perp. Stress does things.”

                    Many years ago, when I was at basic training, the guy next to me on the firing range shot at my target. He got the minimum passing score, which is 0, and I scored 68 hits with 40 rounds. That guy cost me a sharpshooter’s ribbon. Didn’t matter though, that same day they took the rifles away from all of us and didn’t give them back. I was not in one of the rifle-oriented branches of service. The guns I worked on in tech school were totally different.

          2. LawTalkingGuy:

            1: With the exceptions of situations where the perp was shooting down from a greatly elevated position (i.e. U-Texas Tower and Los Vegas), mass shootings are in confined spaces that the victims can’t get out of, and perps will often exacerbate this by chaining doors shut and such.

            That condition would not have been present here — had the thugs honestly thought that either would have fired, they could have scattered in all directions without restraint.

            2: It’s far more difficult to shoot someone with a ball round than many realize. This is the advantage of the shotgun which has a pattern of pellets that spread out, and the (illegal) sawed-off shotgun where they spread out even faster. This is even more true of the random round which has a really poor chance of hitting someone at any distance.

            I’m not saying ignore safety rules, which exist for a reason, nor that it’s fun to hear a round whistling by you, but at any distance (i.e. 50 yards) you’re really not likely to get hit by someone who isn’t aiming at you. Conversely, a round fired up into the air can (and sometimes does) kill someone on the way back down — it’s a real issue in places like Iraq.

            3: If a half dozen people rob a bank and someone is killed, all of the perps (including the get-away driver outside) are guilty of murder and I’ve seen cases where the person executed wasn’t the one who pulled the trigger.

            Wouldn’t that same principle apply to self defense? If the bank guard and fleeing robbers trade gunfire and the get-away driver is killed by a guard’s gun, is that “murder”? While the 10-year-old on her bicycle would be a different story, but the get-away-driver is a joint actor.

            4: In Maine, 17-A MRSA 104.2 states that “[a] person in possession or control of premises or a person who is licensed or privileged to be thereon is justified in using deadly force upon another person when and to the extent that the person reasonably believes it necessary to prevent an attempt by the other person to commit arson.” Assume, for the sake of argument, that Missouri law said the exact same thing.

            One of these little darlings lights a Molotov Cocktail. Deadly force is justified until the “attempt to commit arson”, i.e. the Molotov Cocktail, is abated. But deadly force against whom?

            The person holding it? The person who lit it? The person who has a half dozen more in his backpack? Or the whole group?

            Conversely, you shoot the perp holding it and he tosses it upwards as he falls, igniting a couple dozen bystanders on fire. Whose fault is that — his or yours? NB: I’m using Maine law here because §104 is so clear, Google “Vinalhaven Stabbing” for a real life example in a different context.

            MY POINT: Even though I doubt the carnage would be as bad as you fear, why wouldn’t the theory of joint enterprise apply here? The mob had already committed at least two crimes (destruction of the gate and trespass) and how is the person standing next to the person holding the Molotov Cocktail any less guilty than the guy sitting outside in the car when someone is shot in the bank?

            1. One other thing: don’t ask me for a cite because I have no idea where I saw it, but the US Army “predicts” that it will take THREE M-16 rounds to kill someone. Emergency medicine has made dramatic advances in treating GSWs over the past century, and not everyone shot will die. Case in point the Chicago funeral shootout.

              Here is the cite for §104 : http://www.mainelegislature.org/legis/statutes/17-A/title17-Asec104.html

            2. You are confusing the felony murder rule which empowers the government to charge people participating in a felony with murder if someone dies during the course of the felony, with the right of self defense. People do not have the right to kill people not threatening them. If I was a bank guard and the bank was being robbed and instead of shooting at the robbers inside I stepped out and shot the getaway driver I would be guilty of murder. That’s not even a close case.

              So too would I be guilty of murder if I purposely shot at someone next to someone with an incendiary device.

              “How is the person standing next to the person holding the Molotov Cocktail any less guilty than the guy sitting outside in the car when someone is shot in the bank?”

              Well for one thing, the bank robbery was presumably planned in advance. Standing next to someone in a crowd is not part of a plan to commit a felony. It’s just standing next to someone committing a felony. There is no such thing as strict liability for being in a crowd.

              1. ” People do not have the right to kill people not threatening them. ”

                Pretty sure cops can kill innocent bystanders if they need to. And the other guy will be charged.

                1. Theoretically they’re not supposed to. Do they get away with it? Unfortunately yes.

            3. “3: If a half dozen people rob a bank and someone is killed, all of the perps (including the get-away driver outside) are guilty of murder”

              When you participate in a felony and somebody dies as a result you can be charged with, and convicted of, felony murder*

              “I’ve seen cases where the person executed wasn’t the one who pulled the trigger.”
              I sure hope not, because felony murder isn’t a capital crime. That takes first-degree murder with aggravating circumstances*, ordinary murderers don’t qualify and neither do felony murderers.

              * the exact details vary from state to state.

            4. “One of these little darlings lights a Molotov Cocktail. Deadly force is justified until the “attempt to commit arson”, i.e. the Molotov Cocktail, is abated. But deadly force against whom?”

              Against whoever is using it to commit arson. Your claim “I shot A because I was afraid of B” won’t get you clear of charges of assaulting A with a deadly weapon or worse (depending on your accuracy and your weapon of choice.)

            5. “you shoot the perp holding it and he tosses it upwards as he falls, igniting a couple dozen bystanders on fire. Whose fault is that — his or yours?”

              Both. But you can invoke privilege and he can’t.

          3. “They could never establish that every person they killed were threatening them with deadly force in particular.”

            What if, in an similar, but hypothetical situation, the homeowners were confronted individuals who had weapons, or specifically threatened violence, as part of a group of individuals who were unarmed and did not make threats, it would be murder to shoot?

            Under your reasoning, it would be. Which, of course, makes no sense. It is patently irrational to expect to have to prove that everyone you shoot was particularly threatening you with deadly force.

            In fact, you could almost never shoot at anyone, because what if you missed and shot someone on the street who wasn’t on the property, by accident? What if you were in a crowded mall and someone pointed a a gun at you? Under your reasoning, you couldn’t fire, even if you didn’t have a chance to run anywhere.

            Criminals could walk around the streets, take hostages to use as human shields, and threaten or cause all sorts of harm; your standard totally nullifies the right of self-defense in this situation. The state has no power to nullify the right of self-defense, even if its laws say otherwise.

            1. “What if, in an similar, but hypothetical situation, the homeowners were confronted individuals who had weapons, or specifically threatened violence, as part of a group of individuals who were unarmed and did not make threats, it would be murder to shoot? ”

              Depends on what you hit. It wouldn’t be any crime if you hit your own foot, or a person who was in the act of threatening you with a deadly weapon. You might get a fine for discharging a weapon within city limits, or maybe not even that. You hit some random stranger who posed no threat to you, it’s negligent homicide, which is not murder. You shoot, say, your ex-spouse or the neighbor you’ve been beefing with, you might get hung up on a murder rap.

            2. “In fact, you could almost never shoot at anyone”

              This is, in fact, the desired outcome. If you’re going to take for yourself the power to end another person’s life, you damned well better be sure you’re killing someone’s got it coming. We might cut you some slack if you were woken up in the middle of the night and shot someone inside your house who shouldn’t have been there, and we’ll probably even take your word for it that they shouldn’t have been there if there’s no evidence that suggests otherwise. But the right to shoot at everyone on the street because you think one guy has it coming? Even if you’re right that he had it coming, those other people didn’t, and shooting at them is a crime.
              Turn in your weapon if you can’t be responsible for it.

          4. “. . . non-threatening people”.

            In a trespassing mob, there are no such “people.”

            1. Depends on what kind of threatening you’re talking about.
              Threatening to trespass? You’re absolutely right.
              threatening to commit a felony? Not so much

              Deadly force isn’t authorized to prevent or end a trespass. It is allowed to prevent or end a felony.

        2. You wrote these words “when threatened with imminent harm.”
          but seem to be ignoring them at the same time. The person with the deadly weapon is the threatenER, not the threatenED.

          1. It gets messy here, because the purpose of self defense law is to allow people to defend themselves against threats. And the problem here may be that Gardner appears to be intentionally ignoring the strengthening of the state’s Castle Doctrine. She can’t claim that she doesn’t understand it, because she was one of its most outspoken opponents when she was in the legislature when it was enacted.

            If state law allows the McCloskys to use deadly force facing the threat that they faced, then they were the threatened, not the threateners. This is essentially the position of the MO AG, who has moved to intervene, as a matter of right, on their side.

            The crowd had committed a violent crime by forcibly breaking open the gate into the housing area, and were trespassing at the time on private property. The McCloskys were on their own property at the time, and some of the crowd appear to have crossed onto their property. A number of threats were thrown their way, many threatening violence. And they claim to have seen several firearms among the trespassers including at least one AK variant.

            I should note the obvious – Garner is a Democrat, and the AG is a Republican, as well as was the legislature that strengthened the state’s Caste Doctrine.

            1. A “crowd” can’t commit a violent crime. A person can. There is no such thing as group mens rea.

              1. What are you talking about? A getaway driver who doesn’t kill anyone in an armed robbery is still guilty for the actions of their fellow criminals. No one made them participate in a robbery.

                In the same way, no one made someone join a riot, even if they personally do not engage in violence. If you think that your defense will work, you will get laughed at. The fact that progressive prosecutors enable and allow violence by agitators that share their beliefs and don’t usually prosecute in this situation is not an argument in your favor.

                1. ” A getaway driver who doesn’t kill anyone in an armed robbery is still guilty for the actions of their fellow criminals. No one made them participate in a robbery.”

                  This is the felony murder rule. partaking in a robbery is a felony, and thus falls under the felony murder rule. Walking down a street isn’t a felony, so it would not fall under the felony murder rule.
                  Neither of which has any relevance to a self-defense claim. Your privilege of self-defense extends to stopping people who were reasonably believed to be imminently about to commit a felony. You shoot at A who was threatening you with a knife, and kill B who was just walking past. you get a free ticket to jail, for negligent homicide, and when you start mumbling that B had it coming because a gate was broken, they’ll just nod and smile as you get led off to prison. Then they’ll laugh out loud at you, and tell your story for years.

            2. “The crowd had committed a violent crime by forcibly breaking open the gate into the housing area, and were trespassing at the time on private property.”

              No, trespassing is not a violent crime, no matter how hard they stomp their feet. Vandalism is also not a violent crime. You know what IS a violent crime? Pointing a gun at someone and telling them you plan to shoot them unless they do what you tell them to do.

            3. “It gets messy here, because the purpose of self defense law is to allow people to defend themselves against threats.”

              When you’re pointing your firearm at someone, you ARE the threat. Need some help with this? OK. Have someone point their finger at you and threaten to shoot you. Are you threatened? Now hand them a firearm, and repeat.

        3. ” which is actually legal to do when threatened with imminent harm.”

          Yes, when actually threatened. But not because you don’t like the people walking down your street.

      2. LTG – You seem to be overlooking the obviously false claim in the email that
        A) it was a “peaceful” protest
        B) The mob was not threatening.

        1. You seem to be overlooking the obvious fact that if you fire a gun into a crowd you will inevitably be using deadly force against people who don’t present an imminent threat of deadly force. Do you think the people the back were likely to kill the McCloskeys?

          1. LTG – your comment is not relevant to the falsity of the email statement that:
            A) it was a “peaceful” protest
            B) The mob was not threatening.

            1. The email isn’t relevant to my point. My point is that a bunch of untrained buffoons with weaponry pointed at a crowd are threatening a mass-murder. That’s it. That’s the point.

              1. “The email isn’t relevant to my point. My point is that a bunch of untrained buffoons with weaponry pointed at a crowd are threatening a mass-murder. That’s it. That’s the point.”

                Yet you responded to my point regarding the email – So why did you respond to a make a non relevant point

                1. You brought up the email. It was never relevant.

                  1. LTG – your third non relevant response –

                    1. No, yours.

              2. I’d be interested in how you come to know the extent of their weapons training?

                I personally would not consider pointing guns at a crowd who had just broken into private property to be threatening mass murder. Rather I would consider it a threat to shoot if and when anyone from the mob acts in an intensified manner. I suspect at least one of 12 might agree.

                1. What would happen if they shot into the crowd? Was every person in the crowd threatening them with deadly harm?

                  1. Perhaps my use of the word “intensified” was not clear, it was a riff on a recent story out of Portland.

                    https://www.msn.com/en-us/news/politics/abc-news-mocked-for-peaceful-demonstration-intensified-report/ar-BB17fpbv

                    I was of course discussing the situation as it unfolded rather than your hypothetical.

                    1. Hit send too soon.

                      As to if actual shooting starts, it would depend greatly on the circumstances. One person attacks and he starts spraying, I’m thinking he’s going to jail. One person attacks and he shoots that individual, no issue. Several members attack, he lets off a few rounds and hits bystanders, hard to say.

                    2. “As to if actual shooting starts, it would depend greatly on the circumstances.”

                      Indeed, there are several possible crimes:
                      discharging a firearm within city limits
                      assault
                      negligent homicide
                      murder
                      and the circumstances would determine which, if any, you could/should be charged with.
                      also, torts would be in play. You shoot at me, you better be sure it was privileged or I’m going to own your house.

                2. “I’d be interested in how you come to know the extent of their weapons training?”

                  Just looking at how they were holding them made me wonder. It was like how Trump held his Bible — almost like holding a Crucifix confronting a vampire.

          2. What about the “Joint Enterprise” issue?

            1. You are conflating a lot of distinct concepts.

        2. “You seem to be overlooking the obviously false claim in the email that
          A) it was a “peaceful” protest
          B) The mob was not threatening.”

          You seem to be supplying your own facts rather than relying on the ones reality has provided.

          1. James Pollock
            July.30.2020 at 7:50 pm
            “You seem to be overlooking the obviously false claim in the email that
            A) it was a “peaceful” protest
            B) The mob was not threatening.”

            “You seem to be supplying your own facts rather than relying on the ones reality has provided.”

            Pollock – In what realm of reality is a mob of protesters tearing down/ crashing a gated community, trespassing on private property, considered peaceful and non threatening.

            I await a coherent reality based response

            1. ” In what realm of reality is a mob of protesters tearing down/ crashing a gated community,”

              I give up, what realm did that happen in?

              Here in this one, A large number of protesters went through a broken gate, which is not a threatening act. Trespassing on private property, ALSO not a violent, threatening act. But pointing firearms at people IS a threatening act, in this reality and I suspect in a number of others as well.

      3. I missed the part where they used deadly force.

        1. Any time you point a gun at someone you are threatening deadly force.

          1. As a matter of English, if not law, if you point a gun at someone and tell to do something, you are using the gun to get what you want.
            Firearm fans like to point out that guns are “used” to avoid crime or violence more frequently than they are fired. This is true. Knowing that the bartender has a shotgun behind the bar has prevented many robberies although using it effectively DURING a robbery presents more problems.

          2. Which, of course, where self defense comes in. If they could legally have used deadly force, they could have threatened to use it. According to the state AG, Gardner is (IMHO intentionally because she was one of its loudest opponent when she was still in the legislature) ignoring the recent strengthening of the state’s Castle Doctrine.

            That said, the other issue is that it appears (see my above comments) that her gun was inoperable, which arguably puts it equivalent to prosecuting someone for assault for pointing a toy gun at someone. If her gun were actually inoperable, then she couldn’t have shot any of the trespassers, regardless of her horrid trigger discipline.

            1. ” If they could legally have used deadly force, they could have threatened to use it.”

              Yes, if. But deadly force is not authorized to put trespassers off the property, nor to keep them from coming on.

              1. Deadly force is ALSO not authorized to put presumed trespassers off the property of another.

        2. It turns out that different states treat this differently. The LaFave & Scott Criminal Law treatise tells us (summarizing what I understand to be the majority rule) that “merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified pulling the trigger.”

          But Missouri takes a different view: “The Missouri Supreme Court has held that unlawful use of a weapon by exhibiting it in an angry or threatening manner constitutes ‘deadly force’ for the purpose of … justification defenses.” For more, see this post.

          1. Thanks.

            But I don’t think that that is going to hurt the McCloskys. Their defense seems to be two fold:
            1) they were justified in sing deadly force under MO self defense laws, including its recently strengthened Castle Doctrine,
            2) they didn’t actually threaten the trespassing mob with actual harm, because their firearms were supposedly inoperable at the time. (Her firing pin was inserted incorrectly, and his magazine was supposedly empty). I think that the prosecution is going to have a hard time proving the contrary.

            1. Personally, I think it’s really stupid to confront someone with an inoperative weapon…

              1. Well, it seems to have worked in this instance. I agree, using an inoperative weapon to threaten an armed intruder would pretty stupid, since it’s likely to provoke him to use his weapon, but the situation is different facing a (mostly unarmed) mob, which is relying on superior numbers rather than weapons. No one in such a mob will want to take the risk of being shot during the mob’s initial rush to take down the intended victim.

                1. “the situation is different facing a (mostly unarmed) mob”

                  But it severely undercuts your claims that you thought you saw that many of them were armed.

            2. Firearms can be used as clubs even when inoperable. Admittedly they’re slightly less deadly that way.

            3. “including its recently strengthened Castle Doctrine,”

              Assuming it was recently strengthened to apply outside the castle.

  4. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused.

    Slightly puzzled by this one. I have read various learned comments on what – to an amateur – seem rather strangely structured indictments emerging from the Mueller team, in which there is a long scandandlous preamble, which turns out to have nothing to do with the offense charged. The structure is roughly :

    1. Mr Barmy Fotheringay-Phipps sent a number of letters to Miss Madeleine Bassett, expressing his devotion, which she found alarming and threatening. And poorly spelled.
    2. On the morning of 11 July 1924, Miss Bassett on looking out from her bedroom window, saw Mr Phipps stalking the sidewalk below, grasping a bunch of flowers in an aggressive manner. His hat was worn at a near revolutionary angle.
    3. Mr Phipps then broke into song singing in a loud and lively voice that Miss Bassett found intimidating. The song concerned bees and tulips, swains and maidens and suchlike rot.
    4. The singing was heard, with displeasure, by a police officer, Constable Stilton Cheesewright. On turning the corner of the street, Constable Cheesewright noted with alarm the jaunty spring in Mr Phipps’ step. Not to mention the distasteful combination of a grey double breasted suit and brown Oxfords.
    5. It was at this point that Constable Cheesewright noted a motor vehicle illegally parked, encroaching on a pedestrian crossing.
    6. Constable Cheesewright ticketed the vehicle, and on checking discovered that it was owned by Mr Phipps.

    Accordingly Mr Phipps is hereby charged with illegal parking under Reg 11-2-34B (New).

    But I am advised – this sort of thing is not only perfectly OK, it is utterly routine.

  5. I think you accidentally a verb in your last sentence.

    1. He wants you to supply the verb.

    2. Whoops, sorry, fixed.

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