Original Photo: https://news.stlpublicradio.org/post/st-louis-couple-points-guns-protesters-was-it-legal#stream/0; BILL GREENBLATT | UPI
Fun fact: Mark and Patricia McCluskey (shown above) are both personal injury attorneys in St. Louis, Missouri. I had no idea. If you haven’t seen this photo/meme by now then here ya go.
Basic facts: the McCloskey’s wielded guns on their property* while BLM protestors were walking down their neighborhood en route to Missouri Mayor Lyda Krewson’s private residence.
Like all stories, there are two sides. The McCloskey’s attorney said the couple wielded guns out of “fear and apprehension.” (Both legal buzzwords for triggering the right to self-defense.) The Missouri prosecutor, Kimberly Gardner, said the “peaceful protestors 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.”
So, the question becomes (in my mind) how does the Castle Doctrine and 1st Amendment co-exist and where can a conflict arise. Please note: I barely scratched the surface on both these doctrines, especially the 1st Amendment.
Castle Doctrine
Easy version: You can protect your Castle (home) with deadly force under certain circumstances. [This changes from state-to-state.]
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.”
1st Amendment: Right To Assemble
The First Amendment of the U.S. Constitution, in part, prevents Congress (and State actors) from creating laws that interfere with citizens’ rights to peacefully assemble and petition the Government for redress of grievances.
So, the BLM protestors were within their rights while peacefully protesting to make their grievances known to Missouri’s Mayor. An argument arises about how these protestors entered into this private community and whether that changes their rights under the First Amendment. Regardless, a private citizen cannot inflict deadly force on peaceful protestors under the guise of the Castle Doctrine when the homeowners lacked the required “apprehension of deadly force.”
Conflict Between the Castle Doctrine & 1st Amendment
Law School Hypothetical: At what point can the Missouri couple enact the Castle Doctrine against peaceful and lawful protestors? Arguably never but presumably if the Missouri couple ever felt they were in “reasonable danger” of “deadly force” while the conflict was physically on their property. Corey Rayburn Yung, a professor at the University of Kansas School of Law, said in some tweets, “homeowners can use deadly force to repel an unlawful entry [onto their property] only if they reasonably think such force is needed to defend themselves from the imminent use of unlawful force.” Mr. Yung went on to Tweet, “So, does MO’s statute represent a new trend, allowing expansive use of deadly force to protect private property? No.” tweets
It should be noted that no shots were fired during this conflict.
Expecting a clear-cut answer… welcome to the law.
For a video of Mark and Patricia McCloskey and the peaceful protestors check out: https://twitter.com/i/status/1277398234055483393
Credit: Debra Weiss & ABA Journal.com for an amazing write up.
Disclosure: This article is not intended to provide legal advice whatsoever. Rather, the author wanted to shed light on a newsworthy matter and briefly provide a 50,000 foot view on legal terms and doctrines and how they possibly interact.
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