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Are lawyers who pointed guns at protesters protected by the castle doctrine?

Source: 
ABA Journal
Author: 
Debra Cassens Weiss
Date: 
Tuesday, June 30, 2020

St. Louis Circuit Attorney Kimberly Gardner said Monday she is investigating after husband and wife lawyers brandished a handgun and a rifle at protesters passing their home on a private street.

Personal injury lawyers Mark and Patricia McCloskey stood outside their St. Louis home while pointing guns and shouting at protesters to leave, report St. Louis Public RadioKSDKKMOV4 and the St. Louis Post-Dispatch (here and here).

The protesters were on their way to Mayor Lyda Krewson’s home.

The couple said protesters had broken an iron gate to the private street in their neighborhood. They live in a Renaissance palazzo mansion that was featured in St. Louis Magazine several years ago after a renovation.

“It was like the storming of the Bastille, the gate came down and a large crowd of angry, aggressive people poured through,” Mark McCloskey told KMOV4. “I was terrified that we’d be murdered within seconds. Our house would be burned down, our pets would be killed.”

Mark McCloskey told KSDK that the crowd became enraged after he got his gun and told the protesters that they were on private property. “One person pulled out some loaded pistol magazine and clicked them together and said that you were next,” he said.

A lawyer for the McCloskeys, Albert Watkins, said in a statement that his clients acted lawfully out of fear and apprehension, which was not race-related.

“My clients, as melanin-deficient human beings, are completely respectful of the message Black Lives Matter needs to get out, especially to whites,” Watkins said in a statement cited by the St. Louis Post-Dispatch.

Gardner, the prosecutor, said in a statement that she was alarmed at events in which “peaceful protesters were met by guns.”

“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,” Gardner said. “Make no mistake: We will not tolerate the use of force against those exercising their First Amendment rights and will use the full power of Missouri law to hold people accountable.”

Law professors differed over whether the McCloskeys were protected by Missouri’s castle doctrine.

Anders Walker, a professor at the St. Louis University School of Law, told the St. Louis Post-Dispatch that the castle doctrine in the state allows the couple to defend their property on a private street.

“At any point that you enter the property, they can then, in Missouri, use deadly force to get you off the lawn,” Walker said. He described the castle doctrine as a “force field” that “indemnifies you, and you can even pull the trigger in Missouri.”

But Corey Rayburn Yung, a professor at the University of Kansas School of Law, said the castle doctrine in Missouri is expansive, but it doesn’t allow the use of deadly force in this situation, according to LawandCrime.com. He made his comments in a series of tweets.

“Whereas the large majority of jurisdictions limit the castle doctrine to the boundaries of the house, MO’s is more expansive,” Yung tweeted. “Some commenters are reading the statute to mean that you could lawfully shoot someone who stepped onto your lawn. Despite the availability of signs saying, ‘Trespassers will be shot,’ mere trespass has not historically been a basis for using deadly force. So, does MO’s statute represent a new trend, allowing expansive use of deadly force to protect private property? No.”

Yung said homeowners can use deadly force to repel an unlawful entry only if they reasonably think such force is needed to defend themselves from the imminent use of unlawful force.

The Missouri Bar Association has received dozens of calls from people who want the McCloskeys’ law licenses revoked, a spokesperson told St. Louis Public Radio.

Faculty name: 
Corey Rayburn Yung