St. Louis Circuit Attorney Kim Gardner, who filed the charges against the McCloskeys, did not order the couple to surrender or be arrested. Instead, as part of Gardner’s reformist approach to reducing incarceration for low-level crimes, she issued them summonses and said she would consider them for a diversion program, which would enable the charge to be dismissed if a counseling or other remedial course were completed. The charge carries a possible penalty of probation up to four years in prison.
The McCloskeys’ attorney Joel J. Schwartz called the charges “disheartening, as I unequivocally believe no crime was committed.” Schwartz said the McCloskeys “support the First Amendment right of every citizen to have their voice and opinion heard. This right, however, must be balanced with the Second Amendment and Missouri law, which entitle each of us to protect our home and family from potential threats.”
In a statement Monday, Gardner said “it is illegal to wave weapons in a threatening manner at those participating in nonviolent protest.” She said if the McCloskeys completed a diversion program, “I believe this would serve as a fair resolution to this matter.”
To enter the St. Louis circuit attorney’s diversion program, one must plead guilty, and if the program is completed, the guilty plea is withdrawn and the charge dismissed.
Missouri Gov. Mike Parson (R) said in a radio interview last week that he would likely pardon the McCloskeys if they were charged. “I think that’s exactly what would happen,” Parson told host Marc Cox when asked if he would issue a pardon. “I don’t think they’re going to spend any time in jail.” The governor tweeted out a link to the interview and noted, “We will not allow law-abiding citizens to be targeted for exercising their constitutional rights.”
Legal experts said that the Second Amendment right to possess a gun does not necessarily allow an individual to brandish it at another person. The Missouri governor may only grant a pardon after a conviction is imposed.
The charges are likely to further stoke the hostilities aimed at Gardner by President Trump and top Missouri Republicans. The governor has called for Gardner to resign, and a U.S. senator demanded that she be investigated for civil rights violations. She also received death threats and racist insults from around the country as the case erupted into a national debate over protesters’ rights vs. the self-defense and Second Amendment rights of homeowners.
After video of the McCloskeys went viral, Gardner said she would investigate. The city’s first African American prosecutor said she was alarmed that “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.”
Earlier this month, St. Louis police obtained a search warrant and seized the two guns brandished by the McCloskeys. Soon after, state Republicans publicly criticized Gardner, and Trump declared her “a disgrace.” Sen. Josh Hawley (R) sent a letter to the Justice Department Thursday saying Gardner’s investigation was an abuse of power.
Gardner told The Post that she believes the Republican attacks were coordinated, calling them “a modern-day night ride,” evoking the terrorist acts of the Ku Klux Klan. She said Hawley’s letter was “a dog whistle of racist rhetoric and cronyism politics.” The St. Louis police chief told reporters on Tuesday that investigators had applied for criminal warrants to Gardner’s office.
The McCloskeys, who have a history of filing lawsuits including against their own property managers, claimed that they acted appropriately after “a mob” smashed their way through the private development’s gate. “The only thing that stopped the crowd from approaching the house was when I had that rifle,” Mark McCloskey said in an interview with NBC affiliate KSDK. “[It was] the only thing that stemmed the tide.”
But video obtained by the St. Louis Post-Dispatch shows that the gate to Portland Place was open when the protesters arrived. Moments after the march moved past his house, Mark McCloskey can be seen yelling at protesters and wielding a rifle. His wife soon joined him and the couple moved from the front door to the lawn adjoining the street, with Patricia McCloskey repeatedly pointing a small pistol at protesters.
Missouri law defines felony unlawful use of a weapon as when a person “exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.” The sentencing range if convicted is probation up to seven years in prison. Misdemeanor assault is defined as when a “person purposely places another person in apprehension of immediate physical injury.” The possible sentence is probation to 15 days in jail.
The McCloskeys and their supporters have said that the “castle doctrine” in Missouri law, and elsewhere, empowers a homeowner to stand their ground and use deadly force when threatened. But Harvard Law School Professor Ronald S. Sullivan Jr. said Friday that “the law is crystal clear in Missouri, that a reasonableness argument is necessary for a defendant to take advantage of the Castle doctrine. The defendant has to be reasonably afraid of being in imminent danger.”
Sullivan said that despite the McCloskeys’ claim that the entire Portland Place neighborhood was private property, and the protesters were immediately trespassing, “the castle doctrine would still be unavailable. The doctrine removes one’s duty to retreat. But they could only use deadly force if they reasonably felt they were in imminent danger. Based on the video evidence, that’s a very difficult argument to make,” because the protesters were unarmed and did not move toward the McCloskey residence, Sullivan said.
“Otherwise,” Sullivan said, “the castle doctrine would swallow up all of the existing law and we’d have a ‘Wild Wild West’ out there.”