Would William Barr need Josh Hawley’s encouragement? The senator from Missouri demanded a Department of Justice intervention in the case of the McCloskeys, the couple who arguably defended their home against a mob and now face prosecution for brandishing their weapons. Hawley accused St. Louis County DA Kimberly Gardner of targeting the couple for her own political purposes and wants Barr to open a civil-rights investigation of Gardner:
Gardner’s office is still investigating, but no charges have been filed. Hawley, a Missouri Republican, wrote in a letter to Barr that Gardner abused her power in seizing the couple’s guns, investigating them and pursuing a possible indictment. He called her actions “an unacceptable abuse of power and threat to the Second Amendment.”
“There is no question under Missouri law that the McCloskeys had the right to own and use their firearms to protect themselves from threatened violence, and that any criminal prosecution for these actions is legally unsound,” Hawley wrote. “The only possible motivation for the investigation, then, is a politically motivated attempt to punish this family for exercising their Second Amendment rights.”
Gardner, in a statement, said, “I am deeply disappointed that a U.S. Senator would intervene in a local matter that is under investigation.” …
Hawley isn’t the only high-level Republican to express concerns about Gardner’s investigation. The case caught the attention of President Donald Trump, who spoke about it in a phone conversation with Gov. Mike Parson on Tuesday.
When he was in the Legislature, Parson co-authored Missouri’s “castle doctrine” law that justifies deadly force for those who are defending their homes from intruders. He said the McCloskeys “had every right to protect their property.”
Well, maybe. The Castle Doctrine allows Missouri residents to defend their property without requiring a retreat first if possible, as some other states do. It does not, however, change the circumstances of the use of lethal force in self-defense, and neither do Stand Your Ground laws, either. All they do is remove the requirement to retreat; a legal use of lethal force (including brandishing lethal weapons) still requires a threat to life or property in circumstances that a reasonable person would be afraid of death or grave harm, among other prerequisites. Trampling the flower bed doesn’t qualify, for instance, but a mob action in your front yard in the context of riots in the area and around the country certainly might.
I’d bet that any prosecutor would have a tough time finding twelve jurors who disagreed with the idea that a reasonable person would fear for their lives in that situation. That’s what makes this probe by Gardner look so politically motivated, especially with the premature seizure of the weapons involved. The McCloskeys haven’t yet been charged with anything, let alone convicted, and the incident was caught on tape. They have confirmed repeatedly that the tape is accurate and the weapons were theirs. So why seize the weapons? Why not wait for the investigation to conclude?
By the same token, however, it’s also a bit premature for a DoJ intervention on the basis of civil rights, too. An investigation of the incident is certainly within Gardner’s purview, even if the seizure looks like an overreach. The McCloskeys can challenge the seizure themselves in court in a habeas action and rely on the Second Amendment in such a motion. (They’re attorneys, so presumably they know how to file such a lawsuit.) Barr got read into the case last week along with Donald Trump, so he’s aware of his options, but he’s probably waiting for further developments. Hawley doesn’t need to wait; he can make political hay all day long on this case, but Barr needs to step more carefully at this stage.
We can expect all sides to wring as much demagoguery out of this situation as possible, but it seems very unlikely that Gardner will tempt fate by pursuing an indictment. This case is a loser in court, and she knows it. If she indicts and gets depantsed in court, Gardner will have to suffer the consequences of raised expectations among the progressives that elected her — and she’s already tempting that fate now as it is.