August 23, 2020
September 13, 2020 UPDATE: St. Louis police cite 9 for trespassing in June protest on private property.
written by Net Advisor™
ST. LOUIS, Missouri. We reviewed public data regarding the incident of the ‘St. Louis Couple’ seen defending their persons, and property before a mob of angry protestors. Here are our findings.
[1] Private Property.
A mob as many as 500 people, broke into private property by destroying a metal gate by the McClosky’s (ages, early 60’s). Such was marked “No Trespassing” and “Private Street.”
A private street is one that is NOT built, owned or maintained by a municipality (in this case St. Louis). Further, a private street is thus built, owned, and maintained by private property owner(s) money.
Private property owner(s) may restrict, prohibit, and lawfully order the removal of any persons from entering, or maintaining presence on such private property. You have the same rights in your own residence, as do all privately-owned businesses in the United States.
[2] The Mob Breaks In.
At this point, uninvited persons are prohibited to enter private property and are subject to trespass in the first degree [MO § 569.140].
Those subjects who broke into the gate by destroying private property, in its-self is also a crime [MO § 569.100]. This forced entry action escalated the incident with demonstrated violence. Some have suggested that it was not known at the time who damaged the gate, but none-the-less, the mob still illegally entered private property.
According to the McClosky’s attorney, it was not until after two ‘white men’ began “menacing” the McCloskys. Reports say the McCloskys were threatened; that they would be killed, their dog killed, and their home burned.
After seeing angry mobs, anarchists aka domestic terrorists [8 USC § 2331 (5)], criminal opportunists, and the similar; all have shown to loot, burn and otherwise destroy businesses around Democratic-controlled cities. Thus it would not unreasonable to think this could happen in your neighborhood with a similar type of “protest.”
The McCloskys didn’t need to wait for their windows to be broken, or improvised (IED) firebombs thrown at them in order to react.
[3] The Castle Doctrine – Self-Defense in MO.
As of July 1, 2020, new laws in Missouri went into effect including expanded definitions of self-defense and the Castle Doctrine.
Missouri is one of twenty-five “Stand Your Ground” states, which means you don’t have to back down if threatened by other(s).
Thus, the McClosky’s had every right to ‘stand their ground,’ especially on their own property. They, like all citizens in Missouri, have the right to defend themselves [MO § 563.031], and their property [MO § 563.041] as necessary, given just cause.
Keep in mind that in court, most states seem to suggest that Stand Your Ground does not mean you bring weapons, body armor, IED’s with intent to cause problems – then claim “self-defense.”
Generally speaking under Stand Your Ground, one is responding to an incident, and is not the instigator. A mob or person(s) breaking into your property, trespassing, where the instigator(s) are carrying sticks, or anything that can be used as a weapon; dressed in tactical gear, making threats of bodily harm, or harm to property; any response to defend against that is a reasonable defense.
Now, let’s say the McCloskys or someone saw ‘protestors’ just walking by outside on city-owned property. Let’s say protestors were constantly moving from Point A to Point B (toward a destination). Thus they were just passing by the property (not on private property). And if such protesters took no criminal action against persons or property, the McCloskys could not run out with guns and threaten the protestors.
Police indicated that the incident in question was a case of “trespassing” [MO § 569.140] and “assault by intimidation,” [MO § 565.056 (3),(4) (Assault in the Fourth Degree)].
This means police found that the McCloskys were the victims, not the instigators.
[4] Missouri is an Open Carry State.
According to Missouri’s State Constitution says in part:
“…the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned…”
— Missouri STATE CONSTITUTIONAL PROVISION – Article 1, Section 23. Source: NRA-ILA.
There are restrictions for felons, mentally ill, one’s age, and other regulations regarding Missouri citizens purchasing or carrying firearms.
Therefore, under the State’s Constitution, would allow the McCloskys or anyone else to wield firearms while on their own property, especially with the intent for defense.
Some argue that the McCloskys could be charged with brandishing [MO § 571.030(4)]. This is a tough argument to make and here is why.
Since Missouri is an open carry state, anyone walking anywhere with a visible weapon could then be deemed as “brandishing.”
Being on your own property and under said Castle Doctrine, Stand Your Ground Law; is not “brandishing” when death threats have been made against you; death threats against your animal(s) or threats to burn down your property.
Thus it seems a bit of a legal reach to pin a “brandishing” argument in this case against the McCloskys. It would counter said multiple state self-defense laws, and ultimately the State Constitution would prevail.
It seems as if everyone likes to sit back with their electronic device, or at their TV news station, and play arm-chair quarterback of what the McCloskys should, and should not have done.
In court, one has to look at not how the public may want to see things, or how things could have been handled, but rather how the McCloskys might have seen things.
This includes, their state of mind, state of imminent fear for their lives, fear of their property burned by arson, their pet(s) murdered, etc. All of this has to be evaluated as if one were them, and then go through the motions as if it was happening to you.
[5] The “Peaceful” Protestors.
No one seems to take issue about the violent actions or threats from the “protestors” who had no lawful right to be on the property in the first place.
We’d argue that peaceful protestors have no legit need to bring or wear body armor, mask their identity, carry shields, wear gas masks, eye protection, carry or “brandish” firearms or weapons of any kind; including improvised destructive devices; unless they have the premeditated intent [Mens Rea] to escalate a ‘protest’ to violence.
[6] Defense Argument.
In a June 29, 2020 interview, Mr. McClosky discussed the events that occurred that day.
Mr. McClosky stated that he and his wife were preparing for dinner at home, saw the mob where someone “forced the gate,” and Mr. McClosky advised the mob that this was “private property” and to “go back.”
The mob ignored the private property/ trespass signs, and the entrance gate destroyed. Mr. McClosky put the mob on verbal legal trespass notice. Anyone staying on private property, especially after verbally advised is deemed trespassing [MO § 569.140].
“We heard all this stuff going on down on Maryland Plaza. And then the mob started to move up Kingshighway, but it got parallel with the Kingshighway gate on Portland Place, somebody forced the gate, and I stood up and announced that this is private property. Go back.
I went inside, I got a rifle. And when they, because as soon as I said this is private property, those words enraged the crowd. Horde, absolute horde came through the now smashed down gates coming right at the house…And these people were right up in my face, scared to death…I stood out there. The only thing we said is ‘This is private property. Go back. Private property. Leave now.’
At that point, everybody got enraged. There were people wearing body armor. One person pulled out some loaded pistol magazine and clicked them together and said that you were next. We were threatened with our lives, threatened with a house being burned down, my office building being burned down, even our dog’s life being threatened…”
— Mr. McClosky NBC Affiliate interview transcript [NBC Affiliate website/ PDF Archive].
So it appears that among the protestors, at least one person apparently had a gun, displayed it, and threatened to use is against the McCloskys. That person could have been shot on sight, and that could have been seen as a justifiable shooting.
Anytime someone is seen displaying a weapon, loading a weapon (visual proof), and explicitly threatens to use it against you; “you’re next,” you may not have to wait until they shoot you first in order to shoot back.
Now, if the threatening man with gun, then holstered his weapon, you cannot shoot him because he is not currently an imminent threat. If he suddenly reached again for his gun to draw it, now he is an imminent threat even if his intent was to do nothing but to draw the weapon.
It is generally assumed that when a person draws a weapon, that alone may demonstrate Actus Reus (voluntary bodily movements). You don’t have to figure out what they are thinking, but rather how they are behaving.
If you ever have called law-enforcement to report someone, the dispatcher will ask not – “what are they thinking?” It’s, “what are they doing?” Specific behavioral actions need to be articulated as to whether or not a crime is in progress.
There are scores of examples of subjects being shot after they drew a gun on law-enforcement. Officers don’t have to wait until the subject shoots first either. They have the same self-defense rights as you do.
If an officer or civilian had to wait and delay response until they are shot at, the officer or civilian may die or be incapacitated first; and therefore have no ability to defend them-self against a gunman.
In some cases, officers have delayed their shooting of a gunman until the subject began to swing the firearm anywhere toward the general direction of one or more officers or persons. This shows a lot of constraint, but may not be necessary in certain self-defense situations.
Self-defense and gun laws vary by state, so check out your state.
If the McCloskys shot at the “protestor” with the gun, and accidentally missed and hit someone else; that person put themselves in danger by participating in a violent mob. Mr. McClosky said he never pointed his rifle at anyone. Mrs. McClosky pointed her hand gun to ward off the threatening mob, but as we find out later, her gun was never loaded and didn’t work.
We would have to say the McCloskys used incredible resistant against a hostile mob.
Media: This was a peaceful protest?
“The only thing that stopped the crowd from approaching the house was when I had that rifle and I was holding there.”
— Mr. McClosky NBC Affiliate interview transcript [NBC Affiliate website/ PDF Archive].
The McCloskys said they support the peaceful Black Lives Matter protests, just not the few “white individuals” who “tarnished” the protest.
No one was injured in the debacle. No shots fired.
[7] Enter the Politics.
In an election year, everything gets political.
Despite the data discussed here, most of the media also denounced the St. Louis couple, and called the protestors, “peaceful.” Other media just skipped over key facts (as stated hereto), and clearly misunderstand what the laws are in the state.
Some of the neighbors denounced the McCloskys for defending themselves. But then again, those neighbors were not the ones being threatened with death, pets killed, or their house burned down.
[8] Prosecutor’s Argument.
Local Circuit Attorney, Kim Gardner (Democrat), sought a search and seizure court order of the McClosky’s home. Police seized the pistol and rifle that were seen on national TV and in social media.
Police did not find any ammunition in the home. The rifle was not loaded, and the pistol could not function.
Gardner filed (misdemeanor) charges against the St-Louis couple for ‘unlawful use of a weapon/flourishing’ aka ‘brandishing.’
[9] Prosecutors Office Reportedly Ordered to Tamper with Evidence.
According to published reports, the hand gun of Mrs. McClosky was found to be inoperable – did not and could not work. In order to make the charge against her stick, the assistant circuit attorney ordered that the crime lab fix the gun so it could fire and then test fire it.
“Assistant Circuit Attorney Chris Hinckley ordered crime lab staff members to field strip the handgun and found it had been assembled incorrectly.
Specifically, the firing pin spring was put in front of the firing pin, which was backward, and made the gun incapable of firing…
…Firearms experts then put the gun back together in the correct order and test-fired it, finding that it worked…”
— Source: 5 On Your Side – a NBC Affiliate/ PDF Archive
This is called, tampering with evidence – a crime [MO Rev Stat § 575.100].
§ 575.100. Tampering with physical evidence — penalties. — 1. A person commits the offense of tampering with physical evidence if he or she:
(1) Alters, destroys, suppresses or conceals any record, document or thing with purpose to impair its verity, legibility or availability in any official proceeding or investigation; or
(2) Makes, presents or uses any record, document or thing knowing it to be false with the purpose to mislead a public servant who is or may be engaged in any official proceeding or investigation.
2. The offense of tampering with physical evidence is a class A misdemeanor, unless the person impairs or obstructs the prosecution or defense of a felony, in which case tampering with physical evidence is a class E felony.
(L. 1977 S.B. 60, A.L. 2014 S.B. 491)
Effective 1-01-17
— Source: Missouri Revisor of Statutes.
So, if we actually followed the law, the person ordering to tamper with evidence in order to secure the charges against a citizen; along with all persons involved in the actual tampering of evidence, should thus be arrested and charged for such. Public attorneys should be suspended pending outcome of their trial; disbarred and sent to prison if found guilty.
Mrs. McClosky’s attorneys should seek to dismiss the charges against her; and file a lawsuit both against individuals and the city found involved for violating her civil rights for bringing false charges and prosecutor’s tampering with evidence, for starters.
The U.S. Department of Justice should also not permit these kinds of illegal practices to go unpunished.
Missouri Attorney General Eric Schmitt filed an Amicus Brief with the court in the McClosky’s defense. The AG said he wants the charges dropped against the McCloskeys; that they acted in self-defense and were within their Constitutional rights.
Mr. McClosky should also seek to dismiss the case for prejudice associated to his wife’s case and the above said shows he did not violate any law.
[10] “Prosecutor” Kim Gardner Has a History of Controversy.
Kim Gardner has a history of controversy.
An Associated Press report discussed that Gardner hired a private investigator in a case where the PI was charged with perjury.
Gardner sued the former state governor, for felony invasion of privacy regarding a photo taken during an extramarital affair. The charges were eventually dropped.
Gardner also created an “exclusion list” to block any police officers from testifying in trials over “credibility concerns.” This seems like blocking police from testifying whom she doesn’t like, or generally whom don’t agree with her views.
On or about June 3, 2020, there were 36 individuals who were arrested by local police including for rioting, looting, and arson. The elected prosecutor, Kim Gardner released all of the subjects without any criminal charges or fines.
“All 36 people who were arrested in St. Louis, Mo. Monday night in connection with protests, looting, and arson have since been released from jail.”
The current appointed Missouri State Attorney General Eric Schmitt, also commented about this on social media:
In a stunning development, our office has learned that every single one of the St. Louis looters and rioters arrested were released back onto the streets by local prosecutor Kim Gardner. pic.twitter.com/tMZVAyHssw
— Eric Schmitt (@Eric_Schmitt) June 3, 2020
Now you know why radicals attack (D)-ran cities. Because they know no one in charge actually cares about the people or businesses, living or operating in Democrat cities. Crime has soared under St. Louis Mayor Lyda Krewson (D). Even the local newspaper called the Downtown St. Louis area as “lawless.”
Next, in 2019, the Missouri Ethics Commission accused Ms. Gardner of seven different campaign violations. She agreed to pay a $6,300 fine.
Separately, Gardner sued the city she works in for a “racist conspiracy” to try and get her out of office. This of course was just a conspiracy.
Gardner recently won her re-election primary. Her 2016 and 2020 campaigns were funded (PDF) in part by billionaire Anti-American, George Soros‘ affiliated groups.
Mr. Soros reportedly helped fund the Ferguson, MO. “protests.”
Some 65 attorneys have either been fired or have quit during Kim Gardner’s tenure.
[11] Our Opinion.
We see this case as malicious prosecution. Gardner’s politically-driven office appears to be using this case and media event as a display to try and put fear into all Americans to not defend themselves if they are ever attacked.
The State Governor of Missouri said he would issue a pardon if the McCloskys are charged, but has yet to do so. The Missouri Governor, and appointed State Attorney General (both Republicans) are up for public election this November 3, 2020.
The McClosky’s trial is pending.
UPDATE:
2020-09-13 St. Louis police cite 9 for trespassing in June protest on private property.
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