U.S.A. –-(AmmoLand.com)- 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.
Section 563.031 specifically allows the use of deadly force, not just showing a weapon, against people who have entered private property unlawfully. In order to be justified, the person using the force must reasonably believe such force to be necessary to defend themselves or a third person from the unlawful use of force.
(3) Such force is used 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, or is occupied by an individual who has been given specific authority by the property owner to occupy the property, claiming a justification of using protective force under this section.
There is no question the rioters unlawfully entered the private property, which makes this charge very unlikely to stick.
The only serious question would be if the McCloskeys could be shown to be “unreasonable” in their fear of the angry mob who had entered their private property unlawfully, and by their account, threatened them, their dog, and their home with violence.
The left is pushing that narrative. At a left-wing site, the fact that the angry crowd entered unlawfully, and were reported to be shouting threats at the McCloskeys, is ignored, and the crowd is portrayed as “peaceful protestors” “walking by” the McCloskeys' house. From lawandcrime.com:
Here is some of the video. The crowd does not sound “peaceful”. 300 or 400 loud “protestors” certainly constitute disparity of force.
The video, obviously taken and posted by those on the side of the BLM activists, shows the need to record incidents on media the defenders' control.
Video from the McCloskey's perspective would be powerful evidence in court.
Prosecutors have absolute immunity, granted to them by the Supreme Court in the 1970s and '80s. Kim Gardner has little to fear. She can take the McCloskey's guns and claim the mob was peaceful, without fear of a lawsuit.
The McCloskeys are likely to prevail in court. But Kim Gardner can inflict considerable punishment by process.
The situation shows the importance of strong Castle Doctrine laws. Without the clear Missouri Castle Doctrine law, the McClosky's would be in serious danger of going to prison, merely for defending themselves.
All it takes is a political prosecutor who is on the side of the mob.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.