What counts as brandishing versus self-defense of your own property?

During a Black Lives Matter protest, demonstrators were walking past the home of a couple in St. Louis. The couple claims threats were being hurled at them, including one person saying, “We’ll live in your house someday.” So they armed up.

They’ve now been charged with a felony, and they’ve also pretty much been promised a pardon by both the governor and President Trump.

Former state Attorney General Rob McKenna says, based on the video, it does look like brandishing to him under the definition in the statute.

“Because, in particular, Mrs. McCloskey is pointing the pistol at the people walking by their property, walking by on the street or the sidewalk,” he said. “Mr. McCloskey is holding what looks to me like a AR-15 type assault rifle, and he is cradling it in his arms. In the video that I saw, not pointing it at the crowd, but you don’t have to point a weapon at someone for it to constitute brandishment.”

What makes this case different is that they are on their own property. In other brandishing cases McKenna has seen, he says the suspect or person charged with a crime is walking down the street with a rifle or shotgun over their shoulder, or waving a handgun around.

“The McCloskeys are arguing that the Castle doctrine is a defense for them, which is the idea of self-defense when you’re defending your own property,” McKenna said. “But, of course, the Castle doctrine is designed to provided a defense when people enter your property and you defend yourself. Here, the protesters apparently did not actually enter the property, they were walking by.”

Even though the protesters were said to have been making threats as they walked by, McKenna said that doesn’t seem to be much of a defense, but you have to look at the specific facts of the case.

“The McCloskeys are quoted as saying that the threats were by white people who had somehow yelled at them, their lawyer’s really trying to make them sound not like racists,” McKenna said. “He claims that they support black lives matter and the messaging. They’re, politically, … left of center, not right of center. It’s a very complicated situation, but they also, I think, this is my judgment, my opinion, they pretty clearly overreacted.”

The protesters walking by were not on their property, he said, and the couple wasn’t just standing there with a gun tucked into their belts.

“They were were displaying the weapons to intimidate, and that does seem to fall under the definition of brandishment,” McKenna said.

In terms of the pardons, McKenna said it’s not appropriate for someone with pardon power to say that in advance of a trial, and in this case, even before charges were filed.

“I think it’s highly inappropriate for the governor to prejudge the situation, prejudge the application of the law,” McKenna said. “In fact, he said in the same radio interview that he didn’t actually know all the facts. So what is he doing proclaiming that he’s going to exercise pardon power when he doesn’t know the facts? At that time, charges hadn’t been filed and there has been no conviction.”

There are certain situations where the governor or president can exercise pardon powers as written in the Missouri and U.S. Constitutions, but McKenna says it should come at the end of the process.

“It’s possible that this couple will plead it out, but they seem really dug in as well,” McKenna said. “I mean, they’re on Fox News and they’re showing up, as you said, in President Trump’s virtual rally. And everyone’s really digging in here. So I think it may very well come down to what a jury thinks.”

“Did the actions of the McCloskeys constitute illegal brandishment, or were they simply standing their ground, if you will, and not brandishing the weapons in the way the statute prohibits?” McKenna added.

For gun owners in Washington who may find themselves in a similar situation, McKenna suggests staying inside.

“You’re allowed to possess firearms,” he said. “You should stay in your house, first of all, not provoke a more serious situation by walking out on the front lawn. I know that some listeners will disagree with that and say, ‘Well, my lawn is my property too,’ but all you’re going to do is escalate the situation and potentially get yourself in trouble.”

If you feel you’re at risk, McKenna says have your weapons at hand, sure, but stay in your house and do not start waving your weapons around.

“If you do take your weapon outside, keep it out of sight,” he said. “… When you start to use weapons in a way deliberately designed to intimidate, there’s a real risk that you’re going to be charged with violating the law against brandishment.”

If someone is actually displaying weapons of their own, making aggressive moves, and coming onto your property, then the facts of the case are different.

“At that point, if they’re on your property, if they’re acting in a threatening manner, then I would say that displaying your weapons, you’re probably within your rights at that point,” McKenna said. “But those aren’t the facts we’re talking about here. That’s not what was happening in St. Louis. It’s not the situation the McCloskeys face.”

“It’s just important to apply common sense here,” McKenna added. “And this applies to the protesters as well, … when there are hundreds of people walking by and someone is intimidated and frightened by it and they have to have weapons, use your head. And don’t go out of your way to inflame the situation yourself as protesters.”

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