Electronically Filed - City of St.

Louis - July 24, 2020 - 12:27 PM

INTHE
CIRCUIT COURT OF ST. LOUIS, MISSOURI
22nd JUDICIAL CIRCUIT

STATE OF MISSOURI, )
) Case No. 2022-CR01300
v. )
)
PATRICIA MCCLOSKEY, )
)
Defendants. )

MOTION TO STRIKE AMICUS BRIEF OF ATTORNEY GENERAL ERIC

SCHMITT SUPPORTING DISMISSAL OF THE CASE

For reasons more political t han legal, the Attorney General attempts to file

an amicus brief in this case. Amicus Br. of Att'y Gen. Supporting Dismissal of t he

Case. The brief is strikingly bereft of authority to suppor t its baseless a nd

uncorroborated claims. Indeed, it appears not to be written as a legal document at

all; rather , the brief reads as a press release, affixed with a legal-sounding caption,

asking this court to serve as the Attorney General's publicist.

The Attorney General ("AG") files this "amicus" brief "support ing" a remedy

tha t the defendant has not requested. On that basis, alone, the court should strike

the pleading. It is conceptually flawed at its core. Amicus briefs, by design and rule,

help the court decide an issue before it. In re Frick, 694 S.W.2d 473, 482 (Mo. 1985)

(concurring) ("Amicus briefs should impress wit h scholarship and logic a nd not with

numbers; cha racter witnesses should be distinguished by quality and familiarity

r ather than by quantity."). At present, no party has sough t dismissal of t his

criminal prosecution and the AG can not assist the court in m aking a determination

not before it.

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On its substance, the Attorney General, not fewer than ten times, makes the

outrageous claim that the Circuit Attorney has initiated the instant criminal

prosecution to penalize the defendants for exercising their fundamental rights to

keep and bear arms. See, e.g., Br. at 1 ("[t]he prosecution sends a powerful message

to all Missourians that they exercise their fundamental right to self-defense at their

peril"); Br. at 4 ("a highly publicized prosecution of Missouri citizens for exercising

the right bear arms in self-defense will have perverse and corrosive effects on these

fundamental rights"); Br. at 5 ("[i]t is hard to imagine a more crippling deterrent to

the exercise of fundamental rights"). Significantly, the AG offers no proof that the

instant prosecution is brought "solely," Br. at 11, to burden defendants'

constitutional rights. Instead, the AG offers wild speculation and inflammatory

prose, rather than reasoned argument and proof. The AG's entire brief is a red

herring that engages political tropes in the place of reasoned legal argument.

To be clear, this prosecution has nothing to do with the abridgment of any

constitutional right. The Circuit Attorney agrees that Missouri citizens have a right

to keep and bear arms guaranteed by the Missouri state and federal constitution.

The instant matter, however, is not a Second Amendment case. If any part of our

Constitution is implicated, it is the First Amendment-- which guarantees the rights

of speech and assembly that cannot be said to be freely exercised when those who

disagree with us resort to brandishing lethal weapons rather than engaging in civic

discourse. As the Attorney General himself said, "[T]he First Amendment protects

fundamental human expression. We are all born with dignity, and we all have

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purpose. Our ability to pursue happiness is tied to our ability to fight for what we

believe in. To make a difference. The First Amendment protects those noble efforts."

AG Schmitt Delivers UMKC Law Commencement Speech, Focuses on Free Speech,

June 14, 2019, available online at https://ago.mo.gov/home/news/2019/06/14/ag-

schmitt-delivers-umkc-law-commencement-speech-focuses-on-free-speech.

But this case presents no constitutional question. This is a case about

whether defendants violated Section 571 of the Missouri Code. See§ 571.030 RSMo.

Pushed to its logical conclusion, the Attorney General's brief argues that the Second

Amendment shields citizens from criminal prosecution for using constitutionally

protected arms in a manner contrary to Missouri law. He is incorrect and the

argument is tautological. There simply is no jurisprudential support or sound legal

argument - whatsoever - for such a position.

The prosecution at issue does not present a complicated fact pattern or legal

quandary. The Circuit Attorney alleges that defendants violated§ 571.030 RSMo by

knowingly exhibiting, in the presence of one or more persons, weapons readily

capable of lethal use in an angry or threatening manner. Following a duly

conducted investigation, an officer from the St. Louis police department attested to

these factual allegations in a probable cause statement. The Circuit Attorney

reviewed the police officer's statements, witness interviews, and video evidence from

the scene and agrees that probable cause exists to charge defendants. See SULLIVAN

JR. & RABB, HARVARD LAW SCHOOL CRIMINAL J USTICE INSTITUTE, White Paper, On

the Decision by the Circuit Attorney for the City of St. Louis Whether to File

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Criminal Charges against Mark and Patricia McCloskey 2 (2020), available at

h ttp ://clinics.law.h arvard.edu/cji/files/2020/07 /CJI-White-Paper-FINAL-1.pdf

(providing links to seven publicly available videos of the incident).

The AG's brief spills much ink describing the castle doctrine, but fails to

understand that the castle doctrine is a species of affirmative defense; in this case,

self-defense. It is a defense that defendants may raise at trial upon satisfaction of

the burden of production prescribed by Missouri law. There is no authority-and

the AG, again, cites no authority-that permits him to resolve an evidentiary

factual dispute pre-trial. Indeed, we know of no authority anywhere in the United

States where a state chief prosecutor can intervene pre-trial, displace the trial judge

and jury, and, in effect, make findings of fact and conclusions oflaw. This is

unprecedented and the court should strike the pleading in its entirety.

In order for the Attorney General's brief to even vaguely make sense, it

implicitly makes a number of factual findings and an important legal conclusion.

The brief, for example, makes a series of summary claims that the defendants were

acting in "valid self-defense." Br. at. 9. To make such a claim, the AG arrogates to

himself the function of a jury. This is precisely the question a jury will one day

answer-whether defendants were acting in self-defense according to Missouri law.

That is what makes a self-defense claim "valid"-a jury's reasoned decision, not the

AG's summary conclusion in a brief. Witness interviews and video evidence suggest

that the defendants cannot meet the requisites of self-defense. But, just as the

Circuit Attorney cannot summarily decide that the conditions for self-defense have

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not been met, neither can the Attorney General decide that they have been met.

This is what a criminal trial is for. The trial judge will decide whether the burden of

production for self-defense is satisfied, not the AG's brief. And, if the burden of

production is satisfied, a jury will decide whether the claim of self-defense is "valid."

1. The court should strike the brief because there is currently no issue
for the court to decide.

The Attorney General has filed an amicus curiae brief before this court to

help it decide an issue that neither party to the prosecution has raised. An amicus

curiae brief is written by a "nonparty with an interest or expertise in a case who

informs the court on a matter oflaw or of fact ," and must be "informative rather

than adversarial." Amicus curiae, The Wolter s Kluwer Bouvier Law Dictionary

(2012 ed.). The very definition of an amicus brief assumes th at some issue is being

lit igated for which the amicus is offering assistance. The AG here puts the

proverbial cart before t he horse. The court should strike this pleading as

improvidently filed or, at a minimum, as untimely.

The AG cites no rule or statute that proves he has standing to file an amicus

brief before there is a case or proceeding filed in t his court . The only rule he cites is

one for appellate courts. Br. at 1 (citing Mo. Sup. Ct. R. 84.05(£)(4)).

2. There is sufficient probable cause to maintain the charge.

Even if the court decides not to strike the AG's pleading on procedural

grounds, there are ample grounds, on a substantive basis, to support the charging

decision. Missouri defines probable cause as the existence of "facts and

circumstances within t he police officer's knowledge, and of which they h ave reliable

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and trustworthy information, [which] would warrant a person of reasonable caution

to believe that the person being arrested had committed the offense." State v.

Johnson, 354 S.W.3d 627, 634 n.6 (Mo. bane 2011). That probable cause exists with

respect to the defendant's conduct is evident from the investigation and probable

cause statement, and the AG can offer no serious argument to the contrary. Indeed,

the AG's brief does not even attempt to argue that no probable cause exists. Instead,

it assumes a nd proffers motives for the prosecution and ascribes them to the Ci1·cuit

Attorney without basis.

The Attorney General's brief makes a number of claims concerning the

motives of the Circuit Attorney, a nd it makes these averments without any evidence

in support thereof. The Attorney General, by way of example, makes the following

claims without citing any basis for making such claims: 1) The Circuit Attorney

engages in a criminal prosecution "of Missouri citizens for exercising their [right to

keep and bear arms]." Br. at 1; 2) the Circuit Attorney, by charging defendants

attempts to "intimidate and deter law-abiding Missouri citizens from exercising

their constitutional right of self-defense." id.; 3) the Circuit Attorney is prosecuting

"Missouri citizens for exercising the right to bear arms in self-defense." Br. at 4; 4)

the Circuit Attorney "targets conduct expressly protected by the U.S. Constitution,

the Missouri Constitution, and the Missouri statutes setting forth the 'castle

doctrine' of self-defense." Br. at 4; and, 5) the Circuit Attorney is "retaliating

against Missouri citizens for exercising a fundamental right." id. This is but a

sampling of a series of irresponsible a nd unsupportable claims made by an elected

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official under a duty to act as an officer of the court. See Mo. Sup . Ct. R. 4-8.2. It is

not coincidence that none-not a single one-of these polemical assertions are

followed with a footnote or other citation. There is no evidential support for such

cla ims. Indeed, it is shameful that a member of the bar would hurl such baseless

claims in a document filed in court.

Contrary to the foregoing, the Circuit Attorney has probable cause that a

crime was committed. And the quality of the evidence that makes up probable cause

in this case is no different in kind, quality, or degree t h a n evidence in the scores of

other unlawful use of weapons cases that her office prosecutes every year .

Publicly available evidence clearly satisfies the probable cause requii·ement.

Mo. Rev. Stat.§ 571.030.1 (4) criminalizes "knowingly ... exhibit [ing], in the

presence of one or more persons, a ny weapon readily capable of lethal use in an

angry or threatening manner."

First, ther e are no grounds for disputing a probable cause determination that

the defendants "knowingly ... "exhibit[ed]" their guns "in the presence of one or

more persons ." This is clear from the video evidence. Teo Armus, St. Louis lawyer

who waved gun at protesters says he was 'victim of a mob, ' The Washington Post

(July 1, 2020), https://www.washingtonpost.com/nation/2020/07/01/mccloskey-st-

louis-guns-protest/.

Second, probable cause exists to show that the weapons were exhibited "in a n

angry or threatening manner." To satisfy this element, a defendant need not even

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brandish or point the weapon.1 Here, video evidence shows that at least one of the

defendants did point their guns toward the crowd at various points of the

interaction. The test for this element is whether "a reasonable person under the

circumstances would feel threatened." SULLIVAN JR. & RABB, HARVARD LAW SCHOOL

CRIMINAL JUSTICE INSTITUTE, White Paper, On the Decision by the Circuit Attorney

for the City of St. Louis Whether to File Criminal Charges against Mark and

Patricia McCloskey 3 (2020) available at

h ttp ://clinics.law.h ar vard.edu/cji/files/2020/07/CJI-V\'hite-Paper-FI NAL-1.pdf (citing

Wiliams v. State, 386 S.W.3d 750, 754 (Mo. 2012); State v. Williams, 779 S.W. 2d

600, 603 (Mo. Ct. App.1989) (citing State v. Murry, 580 S.W. 2d 555, 557 (Mo. Ct.

App.1979))).

Finally, the guns used by the defendants were "weapon[s] readily capable of

leth al use." All firearms satisfy this element, even without proof that they were

functional or loaded at the time of the incident. Williams v. State, 386 S.W.3d 750

(Mo. 2012) holds th at a gun constitutes a "weapon readily capable of lethal use"

without proof that it was functional or loaded. By examining the surrounding

provisions in the statute, the Williams Court concluded that "the language of

§ 571.030.1 in t his statutory scheme presumes that a firearm is a 'weapon readily

capable of lethal use' without requiring it also be proven at trial that it was

1
ln State v. Huckleberry, 823 S. W.2d 82 (Mo. Ct. App. 1991 ), the defendant sat with a shotgun in his lap and his
hand near the trigger, and refused to move it during a standoff with the police. The defendant argued on appeal that
there was insufficient evidence that he exhibited the weapon in an angry and threatening manner. The court affirmed
his conviction, citing as evidence that the defendant used a threatening tone in stating that he had a gun, that he sat
with his finger near the trigger, and that the officers were apprehensive.

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functional or loaded." Id. at 754. The state's three appeals courts had already come

to the same conclusion. State v. Richardson, 886 S.W.2d 175 (Mo. Ct. App. 1994);

State v. Geary, 884 S.W.2d 41, 45 (Mo.App.S.D., 1994); State v. Lutjen, 661 S.W.2d

845, 847 (Mo.App.W.D. 1983).

Based on the foregoing, probable cause for the charges against the defendants

has clearly been satisfied.

3. The application of the castle doctrine is for the trial court and
jury, not the Attorney General

The Attorney General makes a thoroughly incoherent set of arguments

designed to falsely imply that the state and federal constitutional rights to bear

arms somehow conspire to insulate defendants from criminal prosecution for

violation of state laws barring the unlawful use of weapons. The AG's arguments

are plainly incorrect and the implications that flow from his a rguments are

dangerous. The right to keep and bear arms is constitutionally sound but not

absolute. State v. Richard, 298 S.W.3d 529, 531-33 (Mo. 2009). The state maintains

the right to regulate the manner in which weapons are carried a nd used. I d . The

Missouri Supreme Court has held that the section 571.030, which r egulates the

unlawful use of firearms and other weapons, is constitutional. In a lon g and

unbroken line of cases, the law in Missouri is clear: a citizen is prohibited from

exhibiting to one or more per sons a weapon readily capable of lethal use in an angry

or threatening manner. State v. Lutjen, 661 S.W.2d 845 (Mo. Ct. App. 1983); State v.

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Parkhurst, 845 S.W.2d 31 (Mo. 1992); S tate u. Meyers, 333 S.W.3d 39 (Mo. Ct. App.

2010); Williams u. State, 386 S.W.3d 750 (Mo. 2012).

The Attorney Gen er al advances a number of circular arguments. He

maintains that t his prosecut ion must be dismissed because t he law permits

"Missourians [to] defend t hemselves .. . to deter the imminent use of unlawful force

a gainst a nother ." Br. at 8 (emphasis supplied). The circularity is obvious. The AG

asserts that t he prosecution is improper because defenda nts used t heir weapons to

deter imminent and unlawful force. How do we know that the force was imminent

a nd unlawful? The AG states it as fact , arrogating to himself t he t ra dition al role of

the jury. The AG further ar gues that this ma tter must be dismissed because the

castle doctrine removes th e "duty to retreat from [defendants'] own residence or

proper ty when threatened by an unlawful intruder ." Br. at 8 (emphasis supplied).

By its own terms, the castle doctrine is triggered, inter alia, when a per son is

threatened . Whether defendants were threatened to a sufficient degree to trigger

the protections of the castle doctrine likely will be a cen tral issue at trial. The AG

presumably ar gu es tha t defenda nts were threatened. Witnesses say no threats

occurred. The video of the encounter does not appear to sh ow any threats. See

SULLIVAN J R . & RABB, HARVARD LAW SCHOOL CRIMINAL J USTICE INSTITUTE, White

Paper at 2 available at http://clinics.law.harvard. edu/cji/files/2020/07 /CJI-White-

Paper-FINAL-1.pdf (pr ovidin g links to seven publicly available videos of the

incident). This is why we h ave fact-finders: to decide whether to credit th e AG's

articulation of what happened or whether to credit other witnesses or t he publicly

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available video of the encounter . There is no a uthority that permits the Attorney

General to choose which facts he likes best a nd have a criminal prosecu tion

dismissed on that basis.

Equally problematic, the At torney General arrogates to himself authority

reserved for t he province of the t rial court. The AG not only decides the facts, but

decides whether the facts are sufficiently reliable to warrant invocation of the castle

doctrine. In every circumstance in Missouri courts, the trial judge decides whether a

defenda nt has met the bur den of production. State v. Bruner, 541 S.W.3d 529, 530

(Mo. bane 2018) ("[I]f substan tial evidence is presente d of the elements of self-

defense, then the issue is injected a nd self-defense must be submitte d by instructing

the jury that the State has the burden of proving a lack of self-defense beyond a

reasonable doubt."). If evidence is sufficient to trigger a self-defense claim, then the

burden shifts to the prosecu tion to prove, beyond a reasonable doubt, the absence of

self-defense. Id. Without citation to a ny authority whatsoever , the Attorney Gener al

purports to override not only the jury, but the a uthority of the trial court itself.

To the degree the court requires a subst antive response to the Attorney

Gener al's castle doctrine ar guments, t he Circuit Attorney has a good fait h belief

that she can prove the case beyond a reason able doubt and the castle doctrine does

not represent a n impedimen t thereto. If the defenda nts raise the castle doctrine-

the affirmative defense t hat they were defending their home-it will be governed by

Mo. Rev. Stat. § 563.041.1 a nd§ 563.031.

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Mo. Rev. Stat. § 563.041.1 allows individuals to "use physical force upon

a nother person when and to the extent that he or she reasonably believes it

necessary to prevent what he or she reasonably believes to be the commission or

a ttempted commission by such per son of stealing, property da mage or tampering in

a ny degree." Mo. Rev. Stat. § 563.031 allows the use of physical for ce "when a nd to

t he extent he or she reasonably believes such force to be necessary to defend himself

or herself or a third per son from what he or she reasonably believes to be the use or

imminent use of unlawful force by such other person" under particular

circumstances, including "against a person who ... attempts to unlawfully en ter a

dwelling, residence, or vehicle lawfully occupied by such per son ." Both of t hese

provisions include a reasonableness sta ndard.

In S tate u. Whipple, 501 S.W.3d 506, 516 (Mo. Ct. App. 2016), the Cou rt

decided that to claim self-defense under the castle doctrine, t he occupier "must

reasonably believe t he use of force is necessary to defend himself from what he

reasonably believes is a n imminent use of force." Id. (emphasis supplied). Thus, the

jury will have to decide whether the defenda nts h ad a reasonable belief that the

crowd of protesters presented a threat of imminent force. On the one ha nd, media

reports indicate that the defenda nts allegedly have stated in interviews that

member s of the crowd threatened their lives. See "Interview with man who pulled

out gun amid protest ," KSDK News (June 29, 2020), available at

https://www.you tube.com/watch?v=mj tTtPTbRXM. However, on the other ha nd,

video evidence shows t he protesters walking on t he street and does not show t hem

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threatening the defendants. Cassandra Fairbanks, "In this video you can see

protestor s walk right through the gate. It's not destroyed when they walk onto the

street" (June 29, 2020), available at

https://twitter.com/alexiszotos/status/1277607426934616065. The jury will have to

weigh all the evidence, including any testimony presented at trial, to decide

whether it was reasonable for the defenda nts to believe the protesters were about to

imminently and unlawfully cause harm to their persons or property. The Attorney

General is not a juror, a nd h e cannot, by motions practice, upset the structural

divide between advocates, judges, and juries that has defined our legal system since

the early days of the republic.

To accept the argument implied by the Attorney General's brief is dangerous.

The only basis the AG advances in support of his position that the castle doctrine

forecloses prosecution in this case appears to be media accounts of putative

statements by the defendants alleging conduct of the protesters and defendants'

subjective fear. Should the Attorney General prevail in this litigation, it would set a

dangerous precedent in the criminal justice system. All a future defendant would

need to do is make a mere assertion that places his conduct within the domain of

the castle doctrine, and h e or she would be, ipse dixit, insulated from prosecution.

Even if a self-serving statement is contravened by oth er testimonial evidence and

video evidence, on the view of the Attorney General, th e mere articulation itself is

sufficient to terminate a prosecution before a jury has had the ability to adjudge t he

facts. Such is the implication of the rule the Attorney General is urging this court to

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adopt. This rule would give talismanic status to a few phrases, a nd Missourians

would instantly be enjoined from enforcing their state's criminal law.

4. Prosecutorial discretion

Finally, the Attorney General attempts to usurp jurisdiction from the duly-

elected Circuit Attorney of St. Louis . It is well settled that " ... [T]he decision as to

which charge [among multiple applicable statu tes] is to be brought rest s within the

discretion of the prosecutor. State v. Koen, 468 S.W.2d 625, 629 (1fo. 197 1). Indeed,

"... it is within the sole discretion of t he prosecuting attorney concerning against

whom, when and how t he criminal laws are to be enforced." State ex rel. Lodwick v.

Cottey, 497 S.W.2d 873, 880 (Mo. Ct. App. 1973). The only limit on this discretion is

that it may not be exercised arbitrarily or in bad faith. State v. Smith, 422 S.W.2d

50, 66-67 (Mo. ba ne 1967), cert. denied, 393 U.S. 895, 21 L. Ed. 2d 176, 89 S. Ct. 150

(1968)." State v. Bell, 719 S.W.2d 763, 766 (Mo. 1986). The Circuit Attorney's brief

lays out, in sufficient detail above, that the charges against defendants satisfy

probable cause requirements, and demonstrate a good faith belief that defendants

violated Missouri law. The charges are not arbitrary as th ey fall within well-

established Missouri law, and t h e charged conduct is in line with what the Circuit

Attorney's office prosecutes daily. Notably, t he Attorney General makes n o

competent argument to the contrary.

WHEREFORE, the State of Missouri, by a nd t hrough the Circuit Attorney,

prays that the Court strike the Amicus Brief of Attorney General Eric Schmitt

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Supporting Dismissal.

Dated: July 24, 2020 Respectfully submitted,

I s l Kimberly M. Gardner
Kimberly M. Gardner #56780
St. Louis Circuit Attorney
Christopher W. Hinckley#50572
Chief Warrant Officer
1114 Market St. , #401
St. Louis, MO 63101
Phone: 314 622-4941
Fax: 314 622-3369
Email: gardnerk@stlouiscao.org
hinckleyc@stlouiscao.org

CERTIFICATE REGARDING SERVICE

I hereby certify that it is my belief and understanding that all counsel of record in
this matter are participants in the Court's e-filing program and that separate service
of the foregoing document is not required beyond the Notification of Electronic Filing
to be forwarded on July 24, 2020 upon the filing of the foregoing document.

Further, as an act of professional courtesy, I emailed a copy of the foregoing to D.

John Sauer at john.sauer@ago.mo.gov, named as counsel for the Attorney General.

I s l Kimberly M. Gardner
Kimberly M. Gardner

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