@no1marauder said(1a) Someone who robs a bank or some other location with an empty gun has scared people, but no lives were ever at risk except that of the thief. He has participated in a scenario that is scary, sure, but he has not actually posed a threat.
Why? From the point of view of the victim of the crime, it is just as bad to be threatened with a gun either way since you have no way of knowing whether it is operable or not. And from the standpoint of the criminal justice system, it would make little sense to put the burden of proving a firearm was operable in all firearm and related offenses; it would be an easy matte ...[text shortened]... ' haven't read Williams and Wright - they are personal injury, not criminal, lawyers).
I think it's an important distinction.
(1b) It's a rare case because the gun was still in the possession of the person after the crime, even when the police were well aware of who they are.
(2a) It should make a legal difference, and it seems that some people think it does.
At the very least, it would be relevant to sentencing.
The relevant statute is here: https://revisor.mo.gov/main/OneSection.aspx?section=571.030
The McCloskey's E Felony charge is this one:
1. A person commits the offense of unlawful use of weapons, except as otherwise provided by sections 571.101 to 571.121, if he or she knowingly: ...............................
(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner
I suppose on its face you could argue that a non-operable firearm isn't "readily capable of lethal use" but the statute clearly uses language in the other sections intending that a fireman be considered always "readily capable of lethal use"
For instance, section 1: (1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use into any area where firearms are restricted under section 571.107; or
The use of "any other weapon" seems to imply that the weapons mentioned before are all "readily capable of lethal use".
Ditto Section 8:
"(8) Carries a firearm or any other weapon readily capable of lethal use into any church or place where people have assembled for worship, or into any election precinct on any election day, or into any building owned or occupied by any agency of the federal government, state government, or political subdivision thereof; or
And Section 10:
(10) Carries a firearm, whether loaded or unloaded, or any other weapon readily capable of lethal use into any school, onto any school bus, or onto the premises of any function or activity sponsored or sanctioned by school officials or the district school board; or
Maybe it's something the defense will try but the argument that a firearm is considered "readily capable of lethal use" regardless of whether it is operable under this statute seems pretty strong to me.
@philokalia saidThey've already been offered a generous disposition for a Felony; a plea, some community service and then a dismissal in six months if they don't violate any more laws:
(1a) Someone who robs a bank or some other location with an empty gun has scared people, but no lives were ever at risk except that of the thief. He has participated in a scenario that is scary, sure, but he has not actually posed a threat.
I think it's an important distinction.
(1b) It's a rare case because the gun was still in the possession of the person after t ...[text shortened]... it seems that some people think it does.
At the very least, it would be relevant to sentencing.
""I am open to recommending the McCloskey's participate in one of my office's diversion programs that are designed to reduce unnecessary involvement with the courts," Gardner said Monday. "I believe this would serve as a fair resolution to this matter."
https://www.cnn.com/2020/07/20/us/st-louis-couple-weapons-protesters-charges/index.html
"If you successfully complete the program, your guilty plea will be withdrawn and the Circuit Attorney's Office will dismiss charges. "
http://www.circuitattorney.org/felony%20redirect%20program.aspx
Missing in here:
Castle Doctrine Missouri. The castle doctrine, otherwise known as the "stand your ground" law, is a common law principle that allows property owners to legally use deadly force to protect themselves from imminent threats posed by intruders. Missouri, like many states, has adopted a version of the common law castle doctrine.
I think this should get them out of it.
Total waste of time and taxpayer money.
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@my2sons saidA Felony conviction might still get them disbarred, even if they are pardoned.
The governor has already stated he will pardon them if convicted.
Not positive though; I'd have to research Missouri law.
@earl-of-trumps saidNot at all; self-defense or "justification" in legal terms is an affirmative defense which must be presented by a defendant.
Missing in here:
Castle Doctrine Missouri. The castle doctrine, otherwise known as the "stand your ground" law, is a common law principle that allows property owners to legally use deadly force to protect themselves from imminent threats posed by intruders. Missouri, like many states, has adopted a version of the common law castle doctrine.
I think this should get them out of it.
Total waste of time and taxpayer money.
The Missouri Supreme Court has stated: "Thus, we cannot find that subsection 3 gives the occupier, owner, or lessee authority to stand his ground and use deadly force without having a reasonable belief that such force is necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force." https://casetext.com/case/state-v-whipple-31
It would be jury questions whether the McCloskeys actually believed they were facing the imminent use of force (they sure didn't act like it) or even if they did, whether such a belief was "reasonable" since all the protesters did that day was walk by their house on the way to the mayor's house where they staged a peaceful protest rally.
And please, oh please, don't waste everybody's time with the "trespasser" nonsense; you are not allowed to use or threaten lethal force against mere trespassers.
@no1marauder saidSounds like that is what they are going for, yes.
Maybe it's something the defense will try but the argument that a firearm is considered "readily capable of lethal use" regardless of whether it is operable under this statute seems pretty strong to me.
I am not sure if it will work.
@no1marauder said(1) That's an opinion.
It would be jury questions whether the McCloskeys actually believed they were facing the imminent use of force (they sure didn't act like it) or even if they did, whether such a belief was "reasonable" since all the protesters did that day was walk by their house on the way to the mayor's house where they staged a peaceful protest rally.
And please, oh please, don't wa ...[text shortened]... "trespasser" nonsense; you are not allowed to use or threaten lethal force against mere trespassers.
They had witnessed portions of their city burnt down with no response from local police, and so I belive they have every right to fear for their lives as they saw a mob approaching down their private street in the context of riots that had been happening both locally and nationwide.
(2) Are you allowed to brandish a weapon against a trespassper?
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@philokalia saidSo, any time a protest march goes past your house you can start killing people now?
(1) That's an opinion.
They had witnessed portions of their city burnt down with no response from local police, and so I belive they have every right to fear for their lives as they saw a mob approaching down their private street in the context of riots that had been happening both locally and nationwide.
(2) Are you allowed to brandish a weapon against a trespassper?
Or would that be limited to only those protest marches right wingers feel threatened by?
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@philokalia saidAs to 2, back to the Missouri statutes:
(1) That's an opinion.
They had witnessed portions of their city burnt down with no response from local police, and so I belive they have every right to fear for their lives as they saw a mob approaching down their private street in the context of riots that had been happening both locally and nationwide.
(2) Are you allowed to brandish a weapon against a trespassper?
"5. Subdivisions (3), (4), (5), (6), (7), (8), (9), and (10) of subsection 1 of this section shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031."
https://revisor.mo.gov/main/OneSection.aspx?section=571.030
What is a "lawful act of self-defense" even under the Castle Doctrine was spelled out in State v. Whipple. Thus, one cannot exhibit "any weapon readily capable of lethal use in an angry or threatening manner" unless one meets the standard already given i.e. one must have "a reasonable belief that such force is necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force.""
@no1marauder saidI'd simply say that they did not kill anyone.
So, any time a protest march goes past your house you can start killing people now?
Or would that be limited to only those protest marches right wingers feel threatened by?
They certainly exercised bad muzzle control out there, but I understand why they were shocked and worried -- especially if you fully believe their account of their interactions with the protesters.
@no1marauder saidThen it comes down to how much we believe that they were angry and threatening in their display of the weapon.
As to 2, back to the Missouri statutes:
"5. Subdivisions (3), (4), (5), (6), (7), (8), (9), and (10) of subsection 1 of this section shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031."
https://revisor.mo.gov/main/OneSection.aspx?section=571.030
What is a "lawful act of self-defense" even under the Castle Doctrine w ...[text shortened]... r a third person from what he reasonably believes to be the use or imminent use of unlawful force.""
And that would also factor in whether or not we believe their poor muzzle control is purposeful in this regard -- as Soothfast has pointed out in other places, at various points the woman was even posing a threat to herself and her husband.
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@philokalia saidThey were idiots. If you need to protect your property during a riot you hide with your weapon (on the roof is a good place) and fire warning shots if someone tries to light a fire or kick in the door. Two guns is not going to stop a mob that wants to kill you if you are standing in plain sight brandishing them.
(1) That's an opinion.
They had witnessed portions of their city burnt down with no response from local police, and so I belive they have every right to fear for their lives as they saw a mob approaching down their private street in the context of riots that had been happening both locally and nationwide.
(2) Are you allowed to brandish a weapon against a trespassper?
https://warisboring.com/the-legacy-of-the-roof-koreans-28-years-later/
After consulting with an attorney, the Korean-language radio station operators put out a message: Defend Koreatown, do not flee.
“We changed our broadcast from ‘leaving our town’ to ‘defending our town,’” said Richard Choi, former president of Radio Korea.
Realizing that their area was not without rule of law and that they were on their own, the residents -many of whom were veterans of the US military or former soldiers of the Republic of Korea’s mandatory service program- organized security teams and established a perimeter around essential business areas.
The list of armaments seen was staggering to the average Californian at the time, even though local gun laws were far more relaxed in 1992 than they are today. AK-pattern rifles, Glock 17s, Ruger Mini-14s, SKS carbines, AR15s (namely the Colt Sporter series), TEC-9s, Uzi-pattern pistols, Remington 870 shotguns, bolt action rifles, revolvers, and the now-coveted Daewoo K-1 semi-automatic variants, which were ROK military-issue at the time and were banned from import by President George H.W. Bush only a few years prior (a pre-ban K1 today -ff you can find one- often commands a price of around $1,000-1,500).
Armed, organized and ready to go, the Koreatown defenders took up positions, with many posting atop the roofs of their businesses. This frequent use of the aforementioned elevated positions gave rise to the moniker “Roof Koreans.”
Soon, open gun battles were taking place as parts of Koreatown burned, with televised crews filming much of the action as it unfolded. Multiple skirmishes took place within the perimeter, and some casualties were recorded.
When curfew followed the setting sun, cars were set up along Olympic Boulevard, with all doors open and headlights on, establishing a lit perimeter in an area affected by a power blackout.
This is what happens when you stupidly brandish a weapon during a riot:
https://spreadsheets.latimes.com/la-riots-deaths/
Charles Orebo, a 21-year-old black man, was shot and killed Friday, May 1, 1992, near the intersection of Florence Avenue and Flower Street in Florence.
Charles "Sticks" Orebo and two friends, Andre Webb and Lavelle "Frog" Williams were driving toward a South Los Angeles house where Webb planned to spend the night.
Near Florence Avenue and the 110 Freeway, Orebo tried to make a lane change, nearly cutting off a car behind him. The other driver honked and pulled alongside at a stoplight.
Williams drew a handgun, loaded it and pointed it past Orebo toward the other driver, an LAPD officer who was out of uniform and en route to work.
"The guy looked at us," Webb said, "and he jumped like he was in shock. Then he pulled up his gun. . . . Then he shot like three times and hit Sticks."