Should the McCloskeys Have Waited for the Police?
The film immediately went viral. On June 28, Mark and Patricia McCloskey, a St. Louis couple, were confronted in the growing dark by hundreds of angry protesters bursting through a gate onto their front yard. “Private property!” Mark shouted, but as dozens more poured onto their property, he and Patricia got their guns and, standing in front of their house, ordered the mob to leave. The scene was a perfect storm of tensions felt through the nation over the Covid-19 pandemic; lockdown in March 2020; release of convicted offenders; protests against the police morphing into weeks of violence and calls to defund them; and a presidential candidate promising to seize their guns has led to record-setting applications for firearms.
Fortunately, no shot was fired, no one was hurt. After a tense altercation the crowd moved on to their original target, the home of Lyda Krewson, the St. Louis mayor down the road. Krewson had angered them when, in reading letters calling for defunding the St. Louis Police, she included the names and some addresses of the writers. She apologized, but the protesters demanded her resignation. Presumably, they didn’t want anyone showing up at their houses.
The McCloskeys own their guns legally and under Missouri’s “castle doctrine,” they have a specific right to protect themselves and their homes by use of force if necessary. The standoff was peacefully defused, but the real problems started when the video went viral.
Next, the police seized the McCloskeys’ guns and the St. Louis Circuit Attorney, Kim Gardner, running for reelection, charged them with “unlawful use of a weapon,” a felony. Nine members of the mob were charged with trespassing, but those charges were dismissed. So much for “trespassers will be prosecuted.” Missouri’s Attorney General filed a legal brief urging that the case be dismissed and Governor Parson promised to pardon the McCloskeys if convicted.
But the case was not dismissed, and they are to stand trial for misuse of their weapons and tampering with evidence. The question is: Should the McCloskeys have waited for the police?
Perhaps in less tense times they might have asked the crowd how they could help them, or called 911. This summer St. Louis police were unlikely to respond. Police headquarters in Ferguson, just down the road, were attacked in late May after the brutal death of George Floyd in police custody. Fires have been set in riots across the country, stores looted, people killed, and the police obliged to defend themselves. There was violence in St. Louis on June 2 with businesses burned and looted, four police officers shot, and a retired police captain, 77-year-old David Dorn, killed. Thirty-seven police officers were killed this summer and more than 400 injured. There are calls to defund them. That is what the mob at the McCloskey house wanted.
But can the police be expected to protect everyone, or even anyone, all the time? Ciera Jackson of St. Louis had obtained a protective order against her ex-boyfriend Victor Whittier. Eleven days later she was dead, shot four times, the restraining order lying atop a microwave a few feet from her body. Her case is unfortunately not unique. One prosecutor tells women who request a restraining order to do so with a backpack and a plan.
Do the police have a duty to protect you when called? The law says otherwise. In Warren v. District of Columbia three women sued the District of Columbia and members of the police department for their failure to provide police services. Two of the women shared a room on the third floor of a house on Capitol Hill, a third had a room on the second floor. When the two on the upper floor heard the sound of the back door being broken down and the screams of the woman below they called 911.
They called repeatedly for half an hour. Police drove by but never attempted to enter. When the screams below stopped the women assumed the police had come. Instead the two intruders seized them and for the next fourteen hours raped, beat, robbed, and abused all three. Their lawsuit against the city and police was dismissed, the judge writing, “The duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists.” In short, the police have a duty to protect all of us but not any one of us.
As long as this case against the McCloskeys continues, Missouri’s Attorney General argues, “it will send a public message to all Missourians that, if they dare to exercise their fundamental right to keep and bear arms in defence of family and home, they may be prosecuted and sent to prison.” Should the McCloskeys have waited for the police? Did they have to?
Joyce Lee Malcolm is Professor of Constitutional Law from George Mason University Antonin Scalia Law School and author of Self Defense, an Unalienable Right in a Time of Peril: Protected and Preserved by the Second Amendment.
Published at Sat, 24 Oct 2020 04:05:36 +0000