Right now we are striving to understand
the sometime violent changes occurring around us. We want to understand the options and
restrictions we are forced to operate in.
Let me remind you, I don’t even write advertising scripts for
lawyers. Don’t take this as legal advice. Even lawyers are getting into trouble in this
environment. These are points to
consider so you can avoid trouble.
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| Note: words of violence are not violence, but can be part of a cycle used to allow a mob to lose control. |
We’ve seen troubles and riots
before and these will run their course.
In the aftermath politicians will be looking to distract voters from
their lack of performance by making examples out of others. It’s not personal, it’s just spin doctoring. You want to make sure it is not you in the
spin cycle.
A mob has excessive disparity of
force. It is the classic many against
the one. All members of the mob
participate in the hazards that the mob incurs.
Just because person X standing in the mob isn’t trying to set your house
on fire doesn’t mean he doesn’t shoulder some responsibility. It is reasonable to level the playing field
with a weapon when you are faced with a mob that intends to harm you. But….
Can you shoot someone for
damaging your property? I think you know
the answer is NO! But you can protect
the people inside. You can also protect
your property and if you are threatened with lethal force in the course of
protecting it you can defend yourself.
St. Louis lawyers Mark McCloskey and his wife Patricia McCloskey, claim
to have been protecting their home. Their
lawyer at one point claimed they were threatened by several men with guns. Mark said “I was a person scared for my life, who was protecting my wife, my home, my hearth, my livelihood…”
Fortunately nobody was harmed,
but this could be just a matter of good luck.
Both Mark and Patricia show an abundance of ignorance about firearms.
Patricia and Mark McCloskey are
each facing one count of Unlawful Use of a Weapon – Flourishing having been
caught up in the beginning of a political spin cycle.. "It is illegal to wave weapons in a
threatening matter… Circuit Attorney Kim Gardner said. Perhaps if they had pointed their firearms
downward and kept their fingers off the triggers things would have gone cleaner.
Claiming later it was a prop gun,
that it was unloaded isn’t justification for anything. The perceived reality is the legal
reality.
One thing that surprises me about
this case is as lawyers they should have known to stop being interviewed and
let their lawyer do the talking. (See addendum below)
We hear the expression “We need a
few more Koreans on the roof tops,” a reference to the LA Rodney King riots in
which some Korean shop owners took defensive positions on their rooftops
keeping the rioters at bay. It should be
mentioned, as I remember it, the men on the roofs had their families in the
shops below at the time. Deadly force as
a last resort to protect innocent lives is an affirmative defense.
Be sure of your target, do not
let fear and panic override common sense and indiscreetly pull the trigger even
when faced with a mob. Be careful of
what you say. Again you’re the video
star they want to provoke. Look at the picture of the man in the white shirt and red bag in the right side. He appears to have and camera and microphone. Is he recording the fellow in the Black Lives Matter shirt or the McCloskeys?
Say thing
like, “I don’t want any trouble.”
“Please don’t make me defend myself.”
“I’ve called the police.”
I think
you get the idea.
Addendum
Flash! Dec 10, 2020 A judge on Thursday disqualified the St. Louis
prosecutor and her office from the case involving Mark McCloskey, who along
with his wife pointed guns at protesters marching on the private street near
their home in June.
Circuit Judge Thomas Clark II
dismissed Circuit Attorney Kim Gardner, citing two campaign fundraising emails
around the time Kim Gardner filed felony gun charges against the couple in
July. Her conduct raises the appearance
that she initiated a criminal prosecution for political purposes.
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| Patricia McCloskey: clearly lacking training |
While you may not believe it is
fair, I believe the McCloskey's access to the media did nothing to allow trouble
waters to calm down. It is also possible
this was their attempt to focus attention to make the case too odious to
handle, too impossible to deal with except by dismissing the charges. Not being a lawyer I don’t know the ins and
outs, but I am under the impression that a simple dismissal can allow police to
reinsert the charge as new evidence or witnesses come forth.
The current order applies only to
Mark McCloskey and not his wife, Patricia, who faces the same charges.
Attorneys for the couple are expected to ask that the ruling apply to Patricia
McCloskey’s case, too.
Flash Flash! Patricia McCloskey’s motion to disqualify
Circuit Attorney’s Office was granted on December 29, 2020. Judge Ohmer will
make the appointment of a special prosecutor, if necessary.
Patricia’s evidence tampering
charge came from the grand jury. At the
request of Assistant Circuit Attorney Chris Hinckley, crime lab staff members
field stripped 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, according to the documents.
Missouri is a strong Castle Law
state, allowing residents to defend their property with deadly force and with
no demand to retreat. The law under which they have presumably been indicted
mandates that the weapon used must be capable of rendering deadly force. The
handgun, if the crime lab had to reassemble it as described above, was
reportedly not capable of firing. So
what if you and everyone else actually thought the gun as functional even if it
wasn’t? I’ve been told the perceived
reality is the legal reality.
The grand jury may also believe
the gun was later dissembled and reassembled to be non-functional. If this was the case, one might speculate
that they should have thrown the spring and firing pin away off property.
The police justified part of
their arrest in that the display of guns risked bloodshed. Their probable cause
statement said protesters feared “being injured due to Patricia McCloskey’s
finger being on the trigger, coupled with her excited demeanor.” I find that more than a little ironic, that
when faced with a mob shouting threats at you, the police are more concerned
with the safety of the mob.
Why do you need to know
this? Simple, no matter what I wrote, what
Massad Ayoob said, what your lawyer told you, the legal actions following any
armed encounter can go badly astray. I
believe the McCloskeys will not end up in prison, but it’s not going to be
cheap, easy or painless.
Clearly avoiding trouble is
always the preferred course of action.
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