Two attorneys in St. Louis who pointed firearms at Black Lives Matter protesters had one of their guns seized by a city prosecutor who executed a search and seizure warrant on Friday. Their other gun was surrendered to police on Saturday.
Personal injury attorneys Mark McCloskey and Patricia McCloskey went viral in late June after being caught on video holding what appears to be an AR-15 style rifle and an extremely small pistol, respectively.
The rifle is now in the possession of city authorities.
“We complied with the search warrant. They took my AR,” Mark McCloskey told local right-wing radio host Todd Starnes on Friday. “I’m absolutely surprised by this.”
City of St. Louis Circuit Attorney Kim Gardner “sought weapons held by Mr. and Mrs. McCloskey during June 28, 2020 in defense of themselves and their home at time of the march,” according to the couple’s former attorney Albert Watkins.
The since-replaced attorney turned over the lesser gun to St. Louis detectives on Saturday after conferring with his former clients and their new attorney Joel Schwartz.
In comments made to various media outlets, the Watkins and Schwartz attorneys have attempted to develop something of a defense, seemingly in anticipation of criminal charges.
Watkins told the St. Louis American that Mark McCloskey had the rifle’s safety engaged at all times and claimed that his ex-client never had his finger on the trigger. Schwartz gave a similar story to the Associated Press, saying that Patricia McCloskey’s gun was never “operable” during the incident and is still not capable of firing.
As Law&Crime previously reported, according to Missouri criminal law, a person “commits the offense of unlawful use of weapons” if they exhibit “in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.”
The defense strategy appears to be an attempt to dispute that the McCloskey’s weapons were “readily capable of lethal use” at the time they were used to menace protesters by claiming that the guns could not have hurt anyone for the various reasons noted above.
But the law doesn’t appear to make such distinctions.
Under case law on point here, which was recently relied upon by the Missouri Supreme Court, the state does not have to actually prove that a weapon was even loaded during a criminal incident in order to satisfy the “readily capable of lethal use” language in the statute.
During that case, State v. Lutjen, a defendant argued that the Show Me State’s criminal code “intends to impose upon the prosecution the proof of a loaded firearm in order to sustain conviction of the offense under § 571.030.” An appeals court ruled that was not so.
The decision explains its rationale, in relevant part:
That is because:
“To hold that it is incumbent upon the state to prove affirmatively that a pistol…which is exhibited in a rude, angry, and threatening manner, is loaded, as a condition precedent to a conviction, would be practically to render the statute unenforceable. This is not only the view which this court has already taken [citations], but it is the view held in all other jurisdictions…”
The [Missouri Jury Instructions and Charges] definition of readily capable of lethal use to mean readily capable of causing death does not impede our conclusion that a loaded gun need not be proven. Common equivalents of the word readily are easily or speedily. A gun is easily transformed into a lethal weapon by the insertion of bullets. The statute does not contemplate that the gun be already lethal [loaded], but only that the weapon can readily become lethal [by loading].
In other words, since longstanding Missouri precedent has held that guns don’t even have to be loaded to count under the relevant statute, the public defense being telegraphed by the couple’s lawyers may not fare well.
And criminal charges hardly seem academic here.
Schwartz said that any such charges would be “absolutely, positively unmerited.” but appeared to be prepared for them.
“A search warrant being executed is clear indication of what the circuit attorney’s intentions are,” he told the Associated Press. “Beyond that, I can’t comment.”
Any filings in the controversy are currently sealed, Gardner said, for safety purposes because of “serious threats” received by her office due to the gun confiscations.
Watkins previously appeared on Fox News alongside Mark McCloskey. Fox News host Tucker Carlson asked if Watkins thought there was a risk that his clients would be charged. Watkins said that there was a chance because Gardner is a “political animal.”
“If the law prevails—long-standing Missouri law prevails—they’re fine,” Watkins said.
Mark McCloskey said the “mob” was threatening and committing acts of “terrorism” and “social intimidation.” He said they smashed down the gate to the private gated community and were trespassing.
The attorney has also said that he got a death threat that night.
“One fellow standing right in front of me pulled out two pistol magazines, clicked them together and said you’re next. That was the first death threat we got that night,” McCloskey said.
[image via screengrab/Twitter/Daniel Shular]
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