Castle Doctrine and lawns

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12Bravo20 said:
n Missouri, trespassing is a misdemeanor crime.
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True fact.

12Bravo20 said:
Yes they had every legal right to be armed
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Yes.

12Bravo20 said:
and to protect their property under Missouri law.
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Not with deadly force. The applicable section of the law at hand has to do with defense of persons.

The law allows the use of deadly force on one's occupied private property if and only if physical force would be justified to protect persons.
 
For those that quoted me. None of us were there to see or say if any of the protesters were armed with any kind of weapon or if they threatened the couple. Trespassing alone is NOT justification for the use of deadly force. One must be in fear for the safety/life of themselves or others that are with them.
 
Recent news:
  1. Thirty eight of the McCloskey's neighbors have signed a letter condemning the couple for "brandishing" of firearms and for "interfering" with a "peaceful protest".
  2. A local television station reports that a petition is in work demanding that the McCluskeys, both attorneys, be disbarred for "aggravated assault with a firearm" [(though there is no such crime in Missouri)].
Mjssouri's assault law differs from that of other states in that assault and battery are not codified separately--in Missorri, first degree assault involves the causing of physical harm, which is called battery in almost all other states.

In most states and at Common Law, assault is defined as putting someone in reasonable fear of harm. In Missouri, that's fourth degree assault, a misdemeanor punishable by a sentence of up to fifteen days. Of course, there is a defense: necessity.

In other states, assault with a deadly weapon, including pointing a gun at someone unlawfully, is classified as aggravated assault. In Montana, to choose an example, the maximum sentence is twenty years.

If it is true that they threatened the McCloskeys with death, the "protesters" as the media continue to call the, .could be found guilty of fourth degree assault.

The "protesters" were surely guilty of trespassing. The penalty for that is greater than that for fourth degree assault.

The greatest legal danger facing the McCloskeys involves "exhibiting ...a [deadly] weapon...in an angry or threatening manner in the presence of two or more persons". It would be difficult to argue that Mrs. McCloskey did not do that.

The maximum sentence is four years--but there is the potential for a defense of justification. That would involve a showing a reasonable belief that the violent members of the crowd were serious in the death threats. They certainly had the opportunity and the ability--with their numbers it would not be necessary to have a reasonable belief that any of them were armed to justify defensive action.

Just to make it clear--one may not threaten deadly force to prevent or terminate trespass in Missouri, or just about anywhere else, for that matter.
 
Those that mentioned that different states have different laws on this and similar topics are very accurate. In my state (Florida) for instance ordinary trespass is a misdemeanor - but trespass while armed is a felony.... and that's just one example (but for someone otherwise lawfully carrying concealed it might be critical if involved in a dispute on someone else's property...).
 
There are three very important facts that we need to know here:
1. The perception of threat, was it reasonable? Having someone on your lawn may not be a threat in one scenario, yet a threat in a different scenario. The circumstances will dictate.
2. Going out on your porch while a protest or procession in simply walking by may raise a red flag, but if the same had stopped on part of your lawn or change direction towards your house- circumstances can change.
3. The exchange of conversation between the two parties before the weapons were drawn.

In the end in most cases reasonable application of your judgement to use dead force or threat thereof will be a key in most cases unless there is blanket statutory protection to either party.

From what I saw on TV I am not sure what level of threat Mr. Mclcoskey perceived, or exactly when he came out. I am not sure if he drew weapon from the beginning or there is more to this.
 
el Godfather said:
From what I saw on TV I am not sure what level of threat Mr. Mclcoskey perceived, or exactly when he came out. I am not sure if he drew weapon from the beginning or there is more to this.
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In an interview on Fox News (probably available on YouTube) he said he went out with his rifle when he saw the mob break through the locked gate, and saw there were no police or community security guards in the area. After he was out on his porch, armed, his wife surprised him by coming out with the pistol, waving it around, and stepping in front of him, making it much harder to maintain muzzle control (my words, not his). He said that at some point while on the porch he heard several members of the mob say they would burn his house, and point to upper windows saying that would be their bedrooms. He also saw one person pull out to display two loaded magazines (McCloskey did not mention seeing a gun) and say he was coming after him.
MY IANAL comments: wife clearly showed she had had no basic handling and safety training, and likely they had never discussed what to do in case of a situation where he was armed. His own statements described above must be taken as testimony by a lawyer (not a criminal defense specialist) trying to assert perception of a deadly force threat.

Innocence, imminence, avoidance, reasonableness, and proportionality (five factors of self defense as taught by Branca) remain open for evaluation in this and other property trespass situations in this thread.
 
I want to clarify something I wrote in post #22 and a comment in that in post #23. In 22 I wrote: “Trespassing is not illegal entry.”. The comment in 23 was: “Actually, it is. But it is not very serious.”

I point this out only because I think it important that we get things as tight as we can on the forum to keep the reliability of information high quality. It turns out that trespassing may be a crime and it may not be a crime depending upon whether it is civil trespassing or criminal trespassing. Here are the distinctions.

Civil Trespass
Civil trespass is a violation of a property owner's right to maintain exclusive control over his property. This is a civil law, meaning the property owner must sue the trespasser in court.

Criminal Trespass
The crime of criminal trespass involves a person knowingly entering or remaining on a property on which he knows he does not have permission to be. Criminal trespass is most often a misdemeanour, though it can be prosecuted as a felony, especially if the trespass results in damage to persons or property.
 
Craig_VA said:
Innocence, imminence, avoidance, reasonableness, and proportionality (five factors of self defense as taught by Branca) remain open for evaluation in this and other property trespass situations in this thread
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Avoidance would not have been a requirement here.

According to McCloskey, trespass was not the dominant issue at all. Threats against life were involved.

The LoSD blog post on the incident is worth watching
 
Here's a hint for a skilled lawyer:

1. Don't go on politically motivate shows like Tucker Carlson and Chris Cuomo
2. Don't admit your wife didn't know what she was doing when possibly committing a crime
3. Get a lawyer who doesn't look bizarre on the tube
4. Release a statement like:

We were in fear of our lives. We support the goals of all wanting to end discrimination and have fought for such. For further information, please contact our lawyer at ...

Then shut up and hope you don't end in court. Take the misdemeanor if offered and you don't lose gun rights.
 
GEM said:
Here's a hint for a skilled lawyer:

1. Don't go on politically motivate shows like Tucker Carlson and Chris Cuomo
2. Don't admit your wife didn't know what she was doing when possibly committing a crime
3. Get a lawyer who doesn't look bizarre on the tube
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They are both lawyers, and they did those things anyway.

GEM said:
We were in fear of our lives. We support the goals of all wanting to end discrimination and have fought for such. For further information, please contact our lawyer at ...
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They have now done that.
 
Kleanbore said:
I'm not convinced that Walker knows the subject anywhere near well enough to comment on it authoritatively.

Missouri ""Castle Doctrine" (specifically, that aspect of the law that provides exception to some limitations of the use of deadly force in the defense of persons) to real property that is owned or leased by the individual who is defending the property. What does that mean on a private street?

Yes, of course that sounds nuts, and it is. People who read the black law would conclude that a resident may shoot anyone who has entered a house unlawfully or who refuses to leave. That is not the case. There are jury instructions that qualify that. I do not have access to them..

In Andrew Branca's state-specific course on the defense of highly defensible property, he mentions required conditions other than unlawful entry. I don't remember what he said well enough to repeat it verbatim. But since I will never be looking for legal justification to shoot anyone, that doesn't bother me.

I would not threaten force to get anyone off my lawn, and I most certainly would not put myself in danger by leaving the safety of my house.

Input on the jury instruction and on Andrew's words would be helpful here.

The couple have been shooting their mouths off in the media, and making statements that could be used against them.

Were they justified? Maybe, but if they are charged, they will spend bales of the long green to establish that they are not guilty beyond a reasonable doubt.

I hope they don't have to find out.

I think their best hope lies in prosecutorial discretion. I don't think that Circuit Attorney Kim Gardner would have any reluctance whatsoever to charge them, but Mayor Krewson might well think twice before letting the serpents out of the bag kind for an incident of that kind in that neighborhood.

By the way, Krewson's husband was murdered [edited] in front of their house on nearby Wells Avenue.
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What does the law have to do with what you would do? I thought this was about the law only. What law say's that you have to be in your house and not on your lawn when responding to threats made against you life, your families life and your property? Were these the people that did this break in, have a Permit to protest? They trespassed onto private property and made verbal threats to life, is that lawful? Does the law require them to be charged with all of these violations, were they arrested and charged? Since we are talking about law only, why the comment "The couple have been shooting off their mouths in the media, and making statements that could be used against them".I noticed that he did so with his attorney. Perhaps he did so to prevent further attacks upon his home and more threats. He certainly did not break any laws, unless of course Freedom of Speech is now denied to the Victim's.

Your comment "I don't think that Circuit Attorney Kim Gardner would have any reluctance whatsoever to charge them," is a discussion of LAW and violations of LAW in itself. Perhaps she should be investigated as well. I do not think her agenda has anything at all to do with law.
 
Well, that's nice. It's why we take classes and study up so we don't blather at the time of the incident. Even with your attorney. Freedom of speech doesn't mean you have to be stupid. It gives you the right to be stupid.

If you think standing on the lawn, in the open, waving a gun is a wise move faced with a possibly armed large number of opponents, tell me what tactical school or armed forces training suggested this?
 
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GEM said:
Well, that's nice. It's why we take classes and study up so we don't blather at the time of the incident. Even with your attorney. Freedom of speech does mean you have to be stupid. It gives you the right to be stupid.

If you think standing on the lawn, in the open, waving a gun is a wise move faced with a possibly armed large number of opponents, tell me what tactical school or armed forces training suggested this?
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Man this is rich. Lol, You are doing nothing but opinion here.,and calling them stupid? Wow this is great?. Maybe now after a invasion from mob and threats to life against them and fear of their house being torched, their lives and even dog threatened they will take a tactical Course. Probably not something most people envisioned when they decided to EDC. LOL, maybe by your comments they will join the Armed Forces to get some training.
 
[QUOTE="Ernie Bass, post: 11560737, member: 258052"]What does the law have to do with what you would do?[/QUOTE]I surely hope that what I would do will be lawful.

Ernie Bass said:
I thought this was about the law only.
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It is about what happened and the potential aftermath.

Ernie Bass said:
What law say's that you have to be in your house and not on your lawn when responding to threats made against you life, your families life and your property? Were these the people that did this break in, have a Permit to protest? They trespassed onto private property and made verbal threats to life, is that lawful? Does the law require them to be charged with all of these violations, were they arrested and charged
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What does any of that have to do with the OP?

Ernie Bass said:
Since we are talking about law only, why the comment "The couple have been shooting off their mouths in the media, and making statements that could be used against them"....He certainly did not break any laws, unless of course Freedom of Speech is now denied to the Victim's.
.I
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As we have discussed many times, statements made ex post facto can have a devastating effect on a legal defense of self defense.

Ernie Bass said:
I do not think her agenda has anything at all to do with law.
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Her decisions will have a lot to do with the the legal matters here.

Ernie Bass said:
Man this is rich. Lol, You are doing nothing but opinion here.,and calling them stupid
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A very educated opinion, I think.

Ernie Bass said:
. Maybe now after a invasion from mob and threats to life against them and fear of their house being torched, their lives and even dog threatened they will take a tactical Course.
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They should have done that beforehand or at least some training in safe gun handling.
 
In an interview on Fox News (probably available on YouTube) he said he went out with his rifle when he saw the mob break through the locked gate...
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I don't know if the gate was locked or not, but there is a video online clearly showing the "protesters" walking through an opened and apparently undamaged gate. I don't doubt the gate was damaged at some point as there are pictures of it showing the damage, but that clearly did not happen at the time of entry.

https://www.riverfronttimes.com/new...rs-release-statement-in-support-of-protesters


I'm not saying that it makes a huge legal difference in terms of what would have been justified, but it's not good for them if it turns out that they have made false statements about the situation and how it played out.
 
JohnKSa said:
he damage, but that clearly did not happen at the time of entry.
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No, the video you linked does not show that clearly at all. By the time the gate is in view, it is being held open for others to walk through. There may have been further damage later, but this video does not show how the gate was opened in the first place, by key, negligence, or damage.
 
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JohnKSa said:
I don't know if the gate was locked or not, but there is a video online clearly showing the "protesters" walking through an opened and apparently undamaged gate. I don't doubt the gate was damaged at some point as there are pictures of it showing the damage, but that clearly did not happen at the time of entry.

https://www.riverfronttimes.com/new...rs-release-statement-in-support-of-protesters


I'm not saying that it makes a huge legal difference in terms of what would have been justified, but it's not good for them if it turns out that they have made false statements about the situation and how it played out.
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I agree with you on this one.

I dont see a damaged gate from this angle of video- but may be damaged later?

Also from this video I dont see what exactly happened that made him come out of his house with a weapon.

Sometimes best defense is to stay in observe while armed and act accordingly especially if you see a movement of some sort towards the house. More so in this case where its a political procession.

On wife waving weapon- it wont help his case.

Lets see what happens next.

I would however expect better handling of the situation. Speak only to the point and do not volunteer unnecessary information.
 
If one decides to have instruments of lethal force, you should be aware of the legal principles and consequences of your actions. You should be aware of how to properly use the firearm from a technical gun viewpoint and how to tactically use the gun. You should be aware of the social consequences of using the gun, even if technically legal.

Your spouse should be similarly brought up to speed.

You should realize that gun usage is not driven by a sense of loss of dominance but survival. You fight to save your life, not to save face.

The legality will work itself out. Whether it was legal will be determined if and when their actions go through the court systems. All the opinions mean nothing until they walk free or not.

Now, my pet peeve is justification of their actions for monkey dance reasons as compared to a rational decision. I see a lot of monkey square dance. That leads folks to avoid criticizing their actions as you feel you want to do the dance also. If you don't stand up for their actions, you might feel a sympathetic loss of dominance. Losing dominant position is a common discussion in FOF and how you need not to fall into that trap. Watching someone lose dominance to a group you don't like, really galls some folks. Interesting effect.

Now, you might say that doing the stupid thing and sacrificing themselves was for the common good. That's called reciprocal altruism. If they stood outside in their manner or even opened fire, it would be a lesson for the next set of folks you don't like on private property with or without political reasons. Thus, they are willing to sacrifice themselves and/or face the consequences.
 
This should wrap up what we know now. Should any more relevant information become available, please send a PM.
 
The McClosky's house has been searched under warrant, and the rifle was taken.

On can reaonably conclude that a criminal investigation is under way.
 
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