St Louis Couple Served, AR confiscated

[JohnKSa]

Is it legal to point a weapon at someone trespassing on someone else's property? I don't know. What if the reason is to keep them from coming onto your property?

To get a very rough idea of what is legal in a situation, one can rely in the general principle that a response should be somewhat similar to the offense.

In this case, the offense is trespassing--a misdemeanor. Threatening someone with a gun is a felony. That's a pretty serious mismatch. Without looking at the laws, my impression is that it's probably not justified.

The point is that, even if Portland Place is a "common element," the McCloskeys are still probably [part] owners of it. Depending on how the condominium or association documents are worded, that may give the McCloskey's the right to tell trespassers to get out.

Sure. I think that there's no question that they were well within their rights to tell the people that they were on private property and they should leave. That's not what they're in trouble for. They're in trouble for threatening people with a firearm. The justification for pointing a gun at someone is completely different from the justification for telling them that they're trespassing and they need to leave.

With that said, my understanding of KY 'Stand your ground' law, I am entitled to defend myself in any location where I am legally entitled to be.

Yes, that is correct. But self-defense is a reactive action. You can't "defend" yourself until there is an attack on your self. People walking down a street--even if they are trespassing, isn't an attack and so self-defense doesn't enter into it.

You can't claim self-defense in the absence of some kind of an attack that puts you in reasonable fear of imminent loss of life or serious injury. If there's no justification for self-defense then stand your ground laws are totally irrelevant.

Think about this. If someone sees you on the street, starts shouting at you and points a gun at you, wouldn't you call the police? I think any reasonable person would feel like a crime had been committed against them and would want the person prosecuted.

The response needs to be generally commensurate with the offense. If a person isn't committing a fairly serious crime against you, don't go pointing guns at them--because threatening someone with a gun is a fairly serious crime. You're not going to be able to justify committing what amounts to a fairly serious crime by pointing out that the person you threatened was committing a misdemeanor offense.

I hope that everyone is learning lessons from this. It's not really about what happens to the McCloskeys, it's about understanding WHY they are being investigated. I don't know if they will be able to make any charges stick, but I can guarantee you that this is going to cost the McCloskeys a lot of time and money. I think they can afford both, but if you can't, then maybe you should think about taking a different approach than they did if you are put in the same situation.

 

[44 AMP]

One of the things with this case is that the law is not crafted with response to civil insurrection in mind.

Keeping in mind it was a different place and a different time, and everyone didn't have a phone that takes videos, look at what happened (legally) to those "Korean shopkeepers" who stood armed between their property and the mob during the LA riots.

Pertty sure they pointed guns at people, then.

However, there's a big difference, because the LA riots were...RIOTS!!

the "mob" had amply demonstrated looting, destruction of property and assault on innocent people by the time those shopkeepers took up their arms. Threat was demonstrated REAL, not a "what might happen" thing.

Here, we have a situation where the "mob" had not (yet?) been doing (much) violence. There is always some breakage, but the press said they were "mostly peaceful protesters" and it seems they "mostly" were.

Since the mob didn't "upgrade" to riot, the claim that they didn't do anything and weren't going to do anything, is not disputable. You can't dispute something that didn't happen.

But you can consider reasons WHY it didn't happen, and include those considerations when applying the law. That is one of the functions of the Prosecutor's office. This is where the idea of "justified" rules, and some folks take a much narrower view than others.

 

[JohnKSa]

One of the things with this case is that the law is not crafted with response to civil insurrection in mind.

It is definitely true that there is only one set of rules.

I think that maybe some folks have the impression that there's a different set of laws that apply when there's civil unrest in the air. It simply isn't true.

However, there's a big difference, because the LA riots were...RIOTS!!

Well, even in a riot, the same sort of justification must exist for using a firearm in self-defense. I don't know if the Korean shopkeepers broke the law or not, but I think if there were proof that they had, they would have been prosecuted--riot or no riot.

Here, we have a situation where the "mob" had not (yet?) been doing (much) violence. There is always some breakage, but the press said they were "mostly peaceful protesters" and it seems they "mostly" were.

By all accounts, they were just passing by the McCloskeys' house on their way to another location where they intended to protest. Had the McCloskeys just finished the dinner they were having on their patio instead of screaming at the protesters and waving guns at them, it seems very likely that they would just have continued on their way to their intended location.

 

[Aguila Blanca]

By all accounts, they were just passing by the McCloskeys' house on their way to another location where they intended to protest. Had the McCloskeys just finished the dinner they were having on their patio instead of screaming at the protesters and waving guns at them, it seems very likely that they would just have continued on their way to their intended location.

Not "by all accounts." I'm fairly certain I read reports that the "peaceful protesters" paused to threaten to burn down the McCloskey's house.

 

[44 AMP]

Not "by all accounts." I'm fairly certain I read reports that the "peaceful protesters" paused to threaten to burn down the McCloskey's house.

One cannot accurately say "by all accounts" when the homeowners tell one story and the people speaking for the mob tell another.

3,000 media stories telling one side of an issue vs. 3 telling the other side does not make the media versions fact. It just makes them more numerous.

I don't know if the Korean shopkeepers broke the law or not, but I think if there were proof that they had, they would have been prosecuted--riot or no riot.

Even if there were proof, I wouldn't expect their prosecution as a given. The entire matter could well hinge on whether or not their actions (including breaking the letter of the law) were deemed justified. And while the law provides a framework, the actual decision is up to the prosecutors, at one point, or ultimately up to a jury if prosecution is proceeded with.

It's entirely possible both sides could be lying. Its also possible both sides are telling the truth, as they remember it. It is also possible we may never have verifiable facts that conclusively proove things either way. Doesn't mean something didn't happen only means we have no proof after the fact.

Sometimes the law allows one to act, based on what someone says. Other times one can only legally act after someone does something. no idea where this one will land regarding that, yet.

Consider this, just for thought, if a mob is yelling threats that they are going to burn down your house, can you act then? Or do you have to wait until they light molotov cocktails? Or, do you have to wait until they throw them, for the threat to be "real" and your actions to be justified?

Further complicating things is the mob now saying "No, we weren't going to throw them, we only lit them so we could find our way home in the dark...." or something to that effect.

can of worms without doubt....

 

[OneFreeTexan]

Did I read somewhere, that the McCloskey’s have some history with the AG as lawyers, perhaps in a court case,s or several??

 

[Mainah]

Part of the challenge they face is that the only footage of the event I've seen came from the perspective of the mob. But I assume that anyone living in a house like that would at the very least have a Ring system, perhaps they can use their own security footage in their defense.

 

[jimku]

Soon as I saw them on their steps with those weapons in hand I figured they would be charged, indicted, most likely bankrupted in legal fees, found guilty anyway and end up doing time.

So far as I know, the castle doctrine does NOT permit you to use deadly force to protect your PROPERTY and only permits you to use deadly force if someone BREAKS IN to your home ... and that the fact that they broke in is considered a threat to your life

I hope I am proven wrong.

I felt that way simply because that mob was allowed to exist. Obviously that state's "authorities" are biased to allow that garbage to go on. We do not have any such problems here in Idaho because any such mob would be met by a couple hundred fully-armed citizens with tactical shotguns, ARs and any manner of other arms, and those citizens have no qualms about using them ... even on the police if the police are on the wrong side.

My feeling is that this country isn't far from an armed civil war.

 

[Aguila Blanca]

So far as I know, the castle doctrine does NOT permit you to use deadly force to protect your PROPERTY and only permits you to use deadly force if someone BREAKS IN to your home ... and that the fact that they broke in is considered a threat to your life

"The castle doctrine" is not a law, it is a general legal principle. What counts is the way the castle doctrine is expressed in the state's laws, and we have fifty states. It's probably safe to assume that each state expresses it somewhat differently.

https://www.ksdk.com/article/news/l...nding/63-531cc88c-336d-4bee-ba15-c270a0fd2879

On January 1, 2017, new rules for gun-owners in Missouri went into effect.

One of the changes was the expansion of the state’s Castle Doctrine which created a stand-your-ground right.

The Castle Doctrine is a common law doctrine that allows residents to use deadly force against anyone, based on the notion that their home is "their castle." Basically, if an intruder violates the sanctity of your home, and you believe they intend to do you harm, you should be able to protect yourself or others against an attack.

According to Findlaw.com, Missouri's law is more extensive than those of other states because it allows you to use deadly force to attack an intruder to protect any private property that you own, in addition to yourself or another individual. This means that if someone illegally enters your front porch or backyard, you can use deadly force against them without retreating first.

More specifically, a person does not have a duty to retreat:

  (1) From a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining;

  (2) From private property that is owned or leased by such individual; or

  (3) If the person is in any other location such person has the right to be.

 

[Bartholomew Roberts]

You can't claim self-defense in the absence of some kind of an attack that puts you in reasonable fear of imminent loss of life or serious injury. If there's no justification for self-defense then stand your ground laws are totally irrelevant.

I’m going to pedantically nitpick here; and I hope John will forgive me. As a gun forum, we often focus on just use of lethal force in self-defense, however...

You can’t use lethal force in self defense absent a reasonable fear of immediate loss of life or serious bodily injury. You can still use lower levels of force in self-defense for lower levels of threat.

For example, in some states, displaying a firearm to prevent unlawful use of non-SBI physical force is lawful, providing you didn’t provoke the unlawful use of force, etc.

From a legal standpoint, this creates a lot of evidentiary problems though. You think you are being threatened and display the gun to prevent unlawful use of physical force. The person seeing the gun believes they face an immediate threat of death or serious bodily injury. If they respond with lethal force, did the chicken or the egg come first?

 

[Bartholomew Roberts]

Ugh, media describing self-defense laws. Every time I read one of those articles, I wonder if they aren’t deliberately putting out bad advice in hopes that somebody will read it, believe it, and shoot someone in a circumstance that they can use to repeal castle doctrine/stand your ground statutes.

The more I deal with the press, the more I realize they aren’t misinterpreting things out of ignorance, they are deliberately lying.

ETA: The gist of Aguila Blanca’s post is absolutely on point. The myriad errors of interpretation in just the quoted paragraph are disturbing though.

 

[ghbucky]

"The castle doctrine" is not a law, it is a general legal principle. What counts is the way the castle doctrine is expressed in the state's laws, and we have fifty states. It's probably safe to assume that each state expresses it somewhat differently.

In KY, the castle doctrine is very specific. It applies to the "domicile". And the domicile is further expanded to be the parts of the livable parts of the house that were on the ORIGINAL blueprints.

In other words, by letter of the law, if you build an addition, the addition is not considered to be part of the domicile, so someone entering it does not invoke castle doctrine. Nor, does someone entering the garage without invitation.

How that would actually apply to someone acting in self defense in an added-on bedroom, I have no idea. I guess you'd better hope for a friendly prosecutor.

 

[Aguila Blanca]

In KY, the castle doctrine is very specific. It applies to the "domicile". And the domicile is further expanded to be the parts of the livable parts of the house that were on the ORIGINAL blueprints.

In other words, by letter of the law, if you build an addition, the addition is not considered to be part of the domicile, so someone entering it does not invoke castle doctrine. Nor, does someone entering the garage without invitation.

How that would actually apply to someone acting in self defense in an added-on bedroom, I have no idea. I guess you'd better hope for a friendly prosecutor.

The notion that an added bedroom might not legally qualify as being within one's "domicile" does seem a bit of a stretch, but this demonstrates my point that we can't rely on a general principle called "castle doctrine." What matters is exactly how the castle doctrine is written into the laws in each state. There is no substitute for reading -- and understanding -- the law that applies to you.

 

[SHR970]

44 AMP wrote: Keeping in mind it was a different place and a different time, and everyone didn't have a phone that takes videos, look at what happened (legally) to those "Korean shopkeepers" who stood armed between their property and the mob during the LA riots.

Pertty sure they pointed guns at people, then.

A) They didn't only point guns they discharged them.
B) Martial Law had been declared.
C) Ca. National Guard were deployed w/o magazines or ammo for their guns at that point.
D) Even under existing Ca. law (INAL) still on the books they were well within their rights to use deadly force to stop ARSON & LAWFULLY stop a riot.
E) I openly packed my NMBH 357 & or Mossy 500 and the LEO's that saw it / them (several) didn't even bother to try to do anything about it.
F) My neighborhood was at one of the stopping points for the carnage. WE stopped it and WE enforced it. NOT LACSD who had jurisdiction. WE the PEOPLE.

In the case of the McCloskey's and the vidoe's from the "protesters" threatening to burn their home down and kill them & their dog; I can and will bet on their being able to articulate a resonable fear for their safety. I've already seen video form the "peaceful protesters" that would have me DQ'ed as a juror.

 

[JohnKSa]

Not "by all accounts." I'm fairly certain I read reports that the "peaceful protesters" paused to threaten to burn down the McCloskey's house.

As far as I can tell, no one stopped to do anything or say anything to the McCloskeys until after the McCloskeys started screaming at them and displaying firearms. They weren't going to the McCloskeys', they were going past their house. It's possible someone may present evidence to the contrary, but right now the evidence available indicates that they created a confrontation where none existed.

You can still use lower levels of force in self-defense for lower levels of threat.

Yes, that's a good point. A lower level of response (pointing a gun vs. shooting at someone) can be justified by a lower level of threat , but it's important to understand that there must be some kind of threat to provide justification even for pointing a gun at someone.

In the absence of a threat (and you can't use threats uttered AFTER you start pointing the gun as justification) pointing a gun at someone is a serious criminal offense.

 

[Tom Servo]

A lower level of response (pointing a gun vs. shooting at someone) can be justified by a lower level of threat

This is the nuance that keeps getting lost. If I just sit on my front porch with a rifle leaned up against the railing, the gun is present, but I'm not actively threatening people with it. Things change when I pick up that rifle and start pointing it at people. That's the line the McCloskeys crossed, and to do so requires a clear threat to their physical well-being, even in the most permissive states.

 

[Hal]

Lost in this whole debate is the single most important point...

The "defenders" made an unforgivable tactical blunder & one that will cost them plenty - in propaganda value.

They forgot the video.

People - if you take only one thing away from the learning experience that this incident should provide to you it's this:
"Have your camera/cell phone in hand".

It is vital to provide "your side" of the events because you can count on the other side cherry picking the footage.
Instad of a non-working pot metal POS - that woman should have been taking videos.

So - sling or holster your weapon - if/when you find yourself in a similar situation - and use you camera or cell phone.

 

[Aguila Blanca]

Yes, that's a good point. A lower level of response (pointing a gun vs. shooting at someone) can be justified by a lower level of threat , but it's important to understand that there must be some kind of threat to provide justification even for pointing a gun at someone.

Once again, it depends on the state. I don't know what Missouri law says on this subject. In my state, pointing a gun at someone or, in fact, even putting your hand on the butt of a holstered firearm in a "threatening" manner is deemed to be use of deadly force, just as much as actually pulling the trigger and shooting someone. It doesn't even have to be a real gun ... as long as the person it's pointed at might reasonable believe it's a real gun, you would be using deadly force under the laws I have to live with.

 

[JohnKSa]

Right. The point is there must be sufficient justification if you're going to do something that is normally a crime.

What I was trying to point out is that one can't just start "defending" one's self with a gun (whatever shape that takes) unless someone is committing a crime against you that justifies your defensive actions. State laws can vary, but in no state is it legal to threaten someone with a gun in the absence of some fairly serious crime being committed against the person using the gun.

Also, one can get a rough feel for what sort of justification is required by looking at the seriousness of the offense of threatening someone with a gun. Threatening someone with a gun is a felony--pretty serious--and so it's reasonable to assume that the justification for threatening someone with a gun is also pretty serious--probably at least a low-level felony.

People seem to have the idea that until you start shooting at someone, anything you do with a gun is perfectly legal. It's not, and this is an important lesson to learn. Pointing a gun at someone/threatening someone with a gun is likely aggravated assault/assault with a deadly weapon which is quite a serious crime.

The other thing to keep in mind is that the same laws apply even during periods of civil unrest. Don't get the idea that the fact that there are protests and riots taking place that you will get more leeway from the legal system when it comes to using a firearm.

 

[JERRYS.]

the only defense I can see the couple using is the fact that the vast majority of these "peaceful protests" in metropolitan areas nationwide have turned extremely violent at the hands of the "peaceful protesters" themselves. And that this self induced violence has lead to arson, thefts, mass vandalism, assaults, murders...