Get ready for a Missouri standoff. Late yesterday, St. Louis County DA Kimberly Gardner finally charged Mark and Patricia McCloskey with felonies and misdemeanors over their display of weapons toward a mob in their yard. Gardner attempted to soften the political blow by recommending a diversion program, but insisted that the law required the pair to be convicted of a crime:
Mark and Patricia McCloskey were each charged with felony unlawful use of a weapon by St. Louis Circuit Attorney Kimberly Gardner, according to a statement and documents from her office. The couple forfeited their weapons to police earlier this month after a warrant was issued. …
“It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest, and while we are fortunate this situation did not escalate into deadly force, this type of conduct is unacceptable in St. Louis,” Gardner said.
Her office said it is willing to recommend a diversion program for the couple, a deal that avoids a court trial and conviction record often offered for first-time offenders of certain non-violent crimes.
“I believe this would serve as a fair resolution to this matter,” Gardner said in her statement. “We must protect the right to peacefully protest, and any attempt to chill it through intimidation will not be tolerated.”
Hold the phone, Missouri AG Eric Schmitt announced almost immediately afterward. In the first place, protesters don’t have the right to trespass on private property and intimidate its owners. In the second place, Schmitt announced, Americans also have the right of self-defense — and he plans to protect that right in court. “Enough is enough,” Schmitt declared:
Citizens shouldn’t be targeted for exercising their #2A right to self-defense
STL prosecutor Kim Gardner is engaged in a political prosecution
As AG I’m entering the case seeking a dismissal & defend all Missourians’ right to protect their lives/property pic.twitter.com/kQLXOAhFIz
— Eric Schmitt (@Eric_Schmitt) July 20, 2020
Within hours of the ruling, Missouri Attorney General Eric Schmitt filed a brief seeking to dismiss Gardner’s charges against the McCloskeys on the grounds that their Second Amendment rights are being violated.
“The right to keep and bear arms is given the highest level of protection in our constitution and our laws, including the Castle Doctrine, which provides broad rights to Missourians who are protecting their property and lives from those who wish to do them harm,” Schmitt said in a prepared statement provided to Fox News.
“Despite this, Circuit Attorney Gardner filed suit against the McCloskeys, who, according to published reports, were defending their property and safety. As Missouri’s Chief law enforcement officer, I won’t stand by while Missouri law is being ignored,” Schmitt said.
The brief filing says the attorney general “respectfully requests that the Court dismiss this case at the earlier possible opportunity.”
The court will have quite an interesting time trying to figure out how to approach this. Both officials would have jurisdiction in this case, but neither one would have precedence over the other — or so it would seem. Both the DA and the AG are elected to their positions, although Schmitt got appointed to fill out the remainder of now-Senator Josh Hawley’s term. Both have legitimate standing, in other words, to deal with crime in St. Louis County, but Gardner’s office is independent of the AG. Hence, Schmitt has to move for dismissal rather than order Gardner to drop the charges.
What will the judge do? At first blush, it would appear to be basically an amicus brief, albeit one with more heft than others. The attorneys for the McCloskeys undoubtedly will make a similar if not identical motion to dismiss. To weigh those, the judge will have to review the evidence in the case, which means the same kind of pretrial hearings and discovery that any other trial would get — at least in brief. Perhaps the judge will see enough evidence to carry it over for trial, or perhaps he or she will take Schmitt’s argument to heart and decide that the charge is politically motivated on Gardner’s part. Of course, Schmitt has his own political reasons to file this motion, even if — as it seems — it’s the right thing to do as well.
The best bet right now is that the judge will force Gardner to present her entire case at a pretrial hearing, thanks in part to Schmitt’s motion. Gardner will have to show that these charges are properly predicated and that self-defense does not apply, which is the real basis of Schmitt’s dismissal demand. (Self-defense is the key here, not the Castle Doctrine; the McCloskeys can’t make use of the latter if they can’t claim the former.) If she can show that the protesters never set foot on the McCloskey’s property — and remember that Gardner has the burden of proof here — then the judge will likely bind the McCloskeys over for trial. If she can’t prove that, and the alleged broken gate tends to make that difficult if true, then this case won’t last long.
Even if it does get to trial, though, this case still looks like a loser. Gardner offered the diversion program alternative up front in an attempt to bargain her way out of a dead-end case, as well as to spin her action as somehow moderate. Schmitt called her and raised the stakes.