“Like A Needle Pulling A Thread”: Prosecutor Kim Gardner Kicked Off McCloskey Case

Authored by Jonathan Turley,

I have been skeptical in the past of the charges brought against Mark and Patricia McCloskey by Circuit Attorney Kim Gardner given the countervailing rights of gun possession and home protection in Missouri. I felt that a case could be maintained as a charging matter but I still fail to see how such charges could be proven at trial or sustained on appeal.  Now, a court has removed Gardner as prosecutor for fundraising on the case.

The couple challenged Gardner’s participation after learning that she used the case to attract donors. It was a disturbing pitch for contributions since critics allege that Gardner dropped charges against the protesters and prosecuted the homeowner to curry favor with liberal voters and activists.

Circuit Judge Thomas Clark II ruled that Gardner had undermined the integrity of the case and left the appearance of having “initiated a criminal prosecution for political purposes.”

He wrote that “[l]ike a needle pulling thread, she links the defendant and his conduct to her critics. These emails are tailored to use the June 28 incident to solicit money by positioning her against defendant and her more vocal critics.”

The entire case seems to be now equal measures of law and politics.  Republican Missouri Gov. Mike Parson has stated he would pardon the McCloskeys if they are ultimately convicted. Frankly, it would be useful to have the underlying issues resolved in the courts.

As discussed earlier, it is not unlawful to be outside of one’s home on your property with a lawful weapon. This is particularly an important defense for Mark McCloskey  if he is not shown pointing the weapon intentionally at any individual.  Indeed, we have seen the same type of weapon displayed in public in rallies (like those against the lock-down orders) and protests (like some in the “autonomous” zone in Seattle).  Existing footage shows Patricia McCloskey pointing the weapon.

However, a complicating factor is that Missouri is a state with a Castle Doctrine law and these guns were lawfully possessed.  The law states, in subsection 3,  that deadly force cannot be used unless “[s]uch force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual.” However, no lethal force was used here. It was threatened.

That raises two questions.  Is the law triggered by entry on the property as opposed to entry without the home?  Also, does the law implicitly support the show of force to deter entry.

Some have cited the 2016 case of State v. Whipple, which interpreted subsection 3 is not giving  “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.” However, the McCloskeys are alleging that they were threatened directly, the protesters were already trespassing, and that the breaking of the gate constitutes a reasonable basis for their fear.

None of this excuses the display of weaponry in the case by the McCloskeys, but the ambiguity and conflicts between the applicable laws would have led many prosecutors to decline prosecution. The pursuit of felony (rather than misdemeanor) charges further fueled criticism that Gardner used the case for political purposes before her recent reelection.

The problem in the Gardner matter is recurring for both state prosecutors and judges who run for office. They appeal to voters based on their records but that can easily cross the line in the use of criminal cases for popular appeal. That is particularly the case with a pending case. Few prosecutors would have done what Gardner did in using a current case to raise money for herself in the election.