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Old July 15, 2020, 04:14 PM   #26
ghbucky
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Can one of the attorneys here weigh in how the cops can show at their house with a warrant for the rifle, and they apparently haven't been charged with a crime?!

That seems crazy illegal.
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Old July 15, 2020, 09:21 PM   #27
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Can one of the attorneys here weigh in how the cops can show at their house with a warrant for the rifle, and they apparently haven't been charged with a crime?!

That seems crazy illegal.
Search warrants are usually issued and served before an arrest, as part of the investigation. If you follow the news, look at the case of "cult mom" Lori Vallow. A search warrant was issued for her new husband's property. Pursuant to that search warrant, the bodies of her two missing kids were found, buried on the property. Lori Vallow was already in custody on charges relating to child endangerment (or something like that). As a result of the search warrant and the discovery of the bodies, new charges were filed against Vallow, and her husband was charged with several offenses, as well.

No, search warrants do not have to follow an arrest. They are typically part of the investigation. The investigators do have to explain to a judge what they're looking for and where they expect to find it, but this is before an arrest, not after.
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Old July 15, 2020, 09:48 PM   #28
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It appears that some have forgotten that their gate was broken by protesters....
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Old July 15, 2020, 11:43 PM   #29
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On a Federal level, go read the 4th Amendment. States may vary slightly, but adhere to the same general principles.

The general point of a search warrant is to search for evidence of a crime. This may and usually is done before charges are filed and arrests made.
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Old July 16, 2020, 12:50 AM   #30
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It appears that some have forgotten that their gate was broken by protesters....
There have been multiple reports that, although there was a "No Trespassing" sign at that gate, the gate wasn't actually locked. Moreover, it has been reported that the gate was not broken by the first wave of entering protesters, it was broken later, not to gain entry but just because ...

This is just some reports I have seen. I do not vouch for their veracity.
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Old July 16, 2020, 02:38 AM   #31
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forced entry onto their property via a locked gate that was torn down? did this not happen?
1. There is video that CLEARLY shows the protesters entering through a gate that appears to be undamaged. I've posted it on TFL in post #12 of this thread:

https://thefiringline.com/forums/sho...d.php?t=607697

There's no way to know if it was locked or not from the video--they might have broken the lock to enter but, if so, that isn't shown in the video. What is certain is that the damage to the gate that has been shown in pictures very clearly did NOT happen at the time the protesters came through it. Both gates were still on their hinges with no visible damage at the time they walked through.

2. The gate was not a gate to the McCloskey's property, it was a gate to Portland Place, a gated community where the McCloskey's mansion is located. There is no evidence that I am aware of that the protesters ever set foot on the McCloskey's actual property. They were walking down a street (albeit a private street in the gated community) past the McCloskey's property when the incident took place. They were on their way to protest at a different house.

It is certainly possible that the protesters were trespassing. But if they were, it appears that they were trespassing on Portland Place property, not on the McCloskey's property.

It is certainly possible that the protesters broke the lock on the gate to gain entry--since the gate has subsequently been badly damaged it's impossible to know.. But it is clear that the gate was not torn down or visibly damaged at the time of entry.

The protesters certainly did come through the gate (which may or may not have been locked and may or may not have been posted) but doing so doesn't seem to have put them on the McCloskey's property. The gate was to the Portland Place gated community, not specifically to access the McCloskey's property.

Questions:
Is it legal to point a firearm at a person trespassing on someone else's property in MO? I don't know about MO law, but it seems to me that pointing a gun at someone for simply being where they don't belong (i.e. walking across property that's not theirs) is a bit extreme.

Would that trespasser having walked past a no trespassing sign provide justification for pointing a firearm at them in that case? I think that the sign might make it easier to prosecute the trespasser, but the offense would still be a minor one--I'm guessing not the kind of thing that would (in the absence of other evidence) justify assaulting the person with a deadly weapon. And yes, pointing a gun at someone without sufficient justification is assault with a deadly weapon.

Would that trespasser having broken the lock on a gate provide justification for pointing a firearm at them in that case? Maybe? I don't know. Remember, we don't know that the lock was broken to gain entry--that's just supposition. Butl let's assume it was. Now it is no longer just someone walking across property that's not theirs--it's not even just ignoring a sign--they had to actually work to defeat/damage some kind of restraint that made it plain the intent was to exclude them. I think that this is clearly a more serious level of trespass, perhaps if one knew for sure that a trespasser had to break a lock to get where they were, it might be sufficient justification for being somewhat concerned about their own safety than just seeing someone on property where they didn't belong. It might justify the display of firearms--but we'd have to look at MO law to be sure.
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No one was shot, no one was shot at, no shots were fired at all.
Threatening someone with a gun is assault with a deadly weapon. In TX, it's called aggravated assault and is a second degree felony even if the weapon is not fired and no one is actually injured.
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Old July 16, 2020, 03:33 AM   #32
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A situation like this is always a can of worms, and specific (and possibly not visible in a video) facts and the precise wording of the laws applied can yield very different legal outcomes from similar seeming situations.

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?

How does one credibly determine the risk/threat from a mob of protestors? Ok, maybe they broke the gate when they left, but I think it is reasonable to consider what MIGHT have happened if no one had pointed at gun in their direction and told them to go away....

We've got a situation here where neither side's word can be taken at full face value. (not uncommon in these matters) so things have to be investigated.

I can imagine it could be a daunting task, simply just identifying who was actaully there and getting statements from them would be a major task.

Then, determining which, if any, statements is actually factual and true is a whole nother level of investigative work.

I've heard that at least some of the people in the mob have said things to the press, we have no idea what, if anything they are saying to the police.

Will be interesting to see what verifiable information is released and how the legal questions are resolved.
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Old July 16, 2020, 07:23 AM   #33
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ok. since the gate was not damaged by the trespassers, and the trespassing was not on the property of the gun wielders, they [the gun wielders] really stepped in it in my opinion.
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Old July 16, 2020, 08:00 AM   #34
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It is certainly possible that the protesters were trespassing. But if they were, it appears that they were trespassing on Portland Place property, not on the McCloskey's property.
If Portland Place is private property, it has to be owned by someone. Much depends on who that someone is ... or are.

If the entire complex, or neighborhood, is private property, it must be owned by some sort of corporate entity, probably a home owners' association (HOA). Legally, I don't know if that's the same as a condominium, but it may be similar. And, of course, Missouri law isn't necessarily the same as any other state's laws on such matters. That said ...

I lived in a condominium for a number of years, and I eventually became a member of the board of directors. In my professional capacity as an architect, I also worked on a number of condominium projects, and our office worked with attorneys in creating drawings that were required as part of the condominium declaration drawings.

An entire condominium is private property but, within that, there are (at least under my state's laws) three levels of access: inside your unit is a private element; certain areas on the outside of your unit, such as decks and fenced yards, are "limited common elements," meaning they are owned by the association but their use is restricted (limited) to the unit owners; and common elements, which encompasses the roads, parking areas, clubhouse, and any recreational facilities. Common elements may be used by any unit owner.

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.
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Old July 16, 2020, 08:42 AM   #35
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Very clearly and succinctly state, AB. Thank you for that.
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Old July 16, 2020, 09:01 AM   #36
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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.
I'll start off saying: I'm not an attorney, I don't play one on TV, and I don't know anything about MO law.

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. The 'protesters' were trespassing, and therefore were not protected by the 'Stand your ground' law and would be required to retreat. Again, that is my understanding of how that would work in KY.

[edit] I'll also add that the MO AG apparently has a similar view of the situation given his remarks on the case.
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Old July 16, 2020, 11:35 AM   #37
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Well, well...

This could get VERY interesting.
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Old July 16, 2020, 03:35 PM   #38
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So this guy brought his wife out with a non-functioning gun and allowed her to face an angry mob? I'll watch the legal case unfold, but I think he deserves judgement here.
Well, if true, it was tactically bad judgment. It also removes one of the major elements in threatening someone with a firearm for the only person who was unequivocally pointing her “firearm” at people. So bad tactical choice; but good legal outcome

As far as the warrant goes, you’ve got video pf people pointing a firearm at protesters. So you’ve got probable cause to investigate whether the crime of threatening someone with a firearm goes. Relevant evidence in that crime would be the firearm, including whether it is a functioning firearm.

Now, would many prosecutors and law enforcement personnel be willing to push an investigation this far in this kind of circumstance? Probably not; but there is a legal basis to investigate. And if you are going to pick a fight with a wealthy plaintiff’s lawyer, you’d best be thorough.
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Old July 16, 2020, 04:37 PM   #39
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Well, if true, it was tactically bad judgment. It also removes one of the major elements in threatening someone with a firearm for the only person who was unequivocally pointing her “firearm” at people. So bad tactical choice; but good legal outcome
I'm still looking for any sign of tactical good judgement in this situation. If their goal was hitting the top of the meme charts for a week they certainly accomplished it.
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Old July 16, 2020, 06:56 PM   #40
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I'm still looking for any sign of tactical good judgement in this situation. If their goal was hitting the top of the meme charts for a week they certainly accomplished it.
Nobody got shot, and the angry mob moved on. Their tactics could have been a lot worse. Remember they didn't ask for this; their space was invaded and they called the police, and that worked about as well as you'd expect. Confronting the mob was Plan B, or Plan C. I think they did okay. A little training would help, but how many people have trained for a situation like this? (I haven't)
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Old July 16, 2020, 11:54 PM   #41
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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.
Quote:
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.
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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.
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Old July 17, 2020, 12:47 AM   #42
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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.
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Old July 17, 2020, 01:50 AM   #43
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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.
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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.
Quote:
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.
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Old July 17, 2020, 05:15 AM   #44
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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.
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Old July 17, 2020, 02:21 PM   #45
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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.

Quote:
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....
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Old July 17, 2020, 03:24 PM   #46
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Did I read somewhere, that the McCloskey’s have some history with the AG as lawyers, perhaps in a court case,s or several??
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Old July 17, 2020, 03:50 PM   #47
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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.
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Old July 17, 2020, 04:44 PM   #48
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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.

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Old July 17, 2020, 05:08 PM   #49
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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/lo...5-c270a0fd2879

Quote:
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.
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Old July 17, 2020, 05:13 PM   #50
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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?
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