By Sam Hoober
A number of months ago, Mark and Patricia McCloskey became angels to some and demons to others for pointing guns at protesters – if they could be called that – who were marching past their house.
The McCloskeys maintained that the mob (which is a little more apt) had made threats. They certainly weren’t somewhere they were welcome; the McCloskeys live in a gated community, and the mob had broken down the gate.
Some people felt the McCloskeys had done nothing wrong, others felt they had gone too far since there was no proof of an immediate threat to anything other than maybe their lawn being stepped on.
As it happens, the prosecuting attorney for the city of St. Louis felt they had gone too far, and charged them with a number of crimes. In the end, Mark and Patricia McCloskey both pled guilty to very minor misdemeanors and had to surrender the pistol and the rifle used in the incident.
With that said, and irrespective of one’s opinions of their actions, there are some takeaways that are worth thinking about.
Bear in mind, this is neither to praise nor bury them. This is to say that if you set aside whether you think they were right or wrong, take a step back and look at the bigger picture, you start to see the thorns amidst the roses.
One aspect is that difference between what you think the law authorizes you to do and then what the local prosecuting attorney thinks about it, and those can be wildly different things.
Now, a lot of people felt they didn’t do anything wrong. After all, it’s not like they didn’t have reason to be afraid; those weren’t Jehovah’s Witnesses walking by their house.
But the prosecutor didn’t feel that was enough to justify their actions.
Initially, they were charged with evidence tampering and unlawful use of a firearm, felony charges, despite an amicus brief from the Missouri Attorney General stating that the McCloskeys, along with any citizen lawfully possessing a firearm, having the right to defend themselves against serious threats and arguing for their release.
Then they got lucky.
Not long into the trial, the prosecutor started using the case in fundraising emails, which led to the judge kicking Circuit Attorney Kim Gardner off the case.
Ultimately, they got a slap on the wrist.
The crimes they pled guilty to were minor misdemeanors (Mark McCloskey pled guilty to fourth degree assault) that added up to less than $1,000 in fines and no jail time. Both will keep their bar cards and remain eligible to practice law, as both are attorneys.
They’re also well-off enough to live in the Portland Place neighborhood; a fine and having to replace a couple of guns is no big deal financially for them.
And here comes the point:
For one, the person who determines whether you face charges is the local prosecuting attorney. If they deem it, you might face charges, even serious ones, for something that would hardly result in any charges (let alone felony charges) in another jurisdiction.
You need to be aware of the realities of the criminal “justice” system. And one of those realities is that crime is in the eye of the beholding prosecutor.
And they can afford their own attorneys; at the going rate of $250+ per hour, not everyone can.
Another thing to know here, too, is that circumstances were very much in their favor, which you or I may enjoy.
Circuit Attorney Gardner seemed to have an axe to grind, so to speak, and – it could seem – wanted to make an example of these people. However, she botched it by including the case in her campaign emails, which gave the appearance of impropriety and using the case for political purposes.
When new counsel was appointed for the state, the serious charges were dismissed and the McCloskeys got a slap on the wrist and what amounted to a minor tax.
The state couldn’t drop all the charges (they’d come too far by that point) and had to get at least something out of it, so they settled for a Pyrrhic victory.
Also, bear this in mind: how plea deals work is the accused agrees to take the rap on some charges in exchange for other ones being dropped.
To get offered a deal, there has to be something in it for the state. Unless they have some sort of interest, the DA doesn’t care if you spend 20 years in prison being savagely beaten by guards and inmates every day over a busted headlight.
Here, the state bungled it badly right off the bat. They had to find an “out,” which in this case was getting the accused to plead guilty to barely anything at all.
Marissa Alexander wasn’t as lucky. Alexander, a victim of domestic abuse, fired a warning shot at her estranged husband when he allegedly threatened to kill her.
No one was hurt, but Alexander was arrested and charged with three counts of aggravated assault with a deadly weapon.
She was convicted in her first trial in 2010 and was sentenced to 20 years in prison, spending three years inside until the appellate court ordered a retrial. During the retrial, Alexander took a plea deal that reduced her sentence to time served, plus two years of house arrest.
In the second trial, prosecutor Angela Corey (who prosecuted George Zimmerman) announced that she was seeking three maximum terms for Alexander.
Without getting too deep into specifics of that case, the point here is that an action that might have resulted in no charges being filed in one jurisdiction might get you convicted of a felony in another.
Unless you have something to bargain with you might believe yourself totally in the right and still do serious time.
In other words, the McCloskeys were fortunate. The rest of us? We might not be.
So be very careful about what you get yourself involved in.
One can’t look at what happened and conclude that there was no basis for them to be afraid. A mob broke down a wrought iron gate and entered a private area; they weren’t out collecting for the Red Cross.
But it isn’t a leap to say that if they had gone inside and stayed there we wouldn’t know their names, and it’s possible nothing would have happened.
Can we chock this up as a win for the good guys? It sure seems so, but it’s also important to recognize just how thin the margins were. If the original prosecutor hadn’t bungled the case so badly, it might not have turned out that way.
The point here is that while the people involved ultimately got off mostly Scot-free, it could have easily gone down differently.
If you’re going to be armed, you need to be aware of the realities of what happens after an instance of armed defense. Just because you think you’re one of the good guys doesn’t mean you’ll be viewed that way by the law.
The further into the gray area of legality and morality your actions are, the more you leave your fate to chance. Thankfully, these two got lucky.
Sam Hoober is a hunter and shooter based in the Inland Northwest.