Opinion Jul 14, 2020 6:40 PM EST

The McCloskeys' rights were violated when home searched, weapons seized

Despite the seizure, the McCloskeys' right to keep and bear arms and defend their home is protected under both state law and the Constitution. Authorities had no legal right to seize their firearms.

The McCloskeys' rights were violated when home searched, weapons seized
Nicole Russell Texas, US
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Local police raided the home of St. Louis couple Mark and Patricia McCloskey and seized the AR-15 Mr. McCloskey famously brandished in front of his home. He took up arms when a 300-person group of riotous protestors damaged and attempted to invade their property during what has been dubbed a "peaceful protest" for Black Lives Matter.

Despite the seizure, the McCloskey’s right to keep and bear arms and defend their home is protected under both state law and the Constitution and as far as I can tell, authorities had no legal right to seize their firearm.

Around half of US states have "stand your ground" laws, including Missouri. Missouri recognizes the "Castle Doctrine" which allows residents to use force against intruders because, after all, one’s home is one’s castle.

"This legal doctrine assumes that if an invader disrupts the sanctity of your home, they intend to do you harm and therefore you should be able to repel their advances. Missouri's law is more extensive than the law in other states because it permits property owners to use the amount of force reasonably perceived as necessary, including deadly force," the law says.

Despite this, John Amman, a law professor at St. Louis University, told a local reporter that what the McCloskey’s did to defend themselves "could possibly be classified as assault by putting protesters in fear of their safety… People have a right to threaten force if they are threatened. However, if a group of protesters is walking by a home and not doing anything to the homeowners specifically, then they don’t have the right to threaten lethal force without an imminent threat."

However, that was not the McCloskey's experience. Mark McCloskey told reporters, "It was like the storming of the Bastille, the gate came down and a large crowd of angry, aggressive people poured through. I was terrified that we’d be murdered within seconds. Our house would be burned down, our pets would be killed." He also said that one "protester" brandished two pistol magazines and threatened, "You’re next."

I’m no attorney and an "imminent threat" of course is somewhat subjective. But per multiple photos and recordings of the incident, upwards of 300 people, who had already broken down the couple’s iron gate marked "private street," had descended on the couple’s home and were shouting threats. Watch and see for yourself.

If ever there was an incident for which the Castle Doctrine applies, surely it would be this. In fact, it’s clear from the rolling tape the reason the mob failed to actually break and enter the couple’s home is due to their possession of legal firearms.

If the Castle Doctrine fails to apply to the McCloskey’s day of terror, surely the Constitution should protect their rights to protect themselves. Former NRA spokesperson and vocal Second Amendment advocate Dana Loesch was disgusted at the lack of due process.

She wrote: "Absolutely insane. A rage mob broke through a gate and trespassed while screaming threats at property owners. We are at the point where politically-motivated state officials are stripping citizens of rights and property without due process."

Not only does the Second Amendment guarantee a US citizens' right to keep and bear arms, but the Fourth Amendment—which isn’t nearly as controversial but is certainly as important here—states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I can’t see how the search of the McCloskey’s home and the seizure of their property holds up under this alone. Justice Scalia addressed this very thing in the 2001 case, Kyllo v. United States, where police illegally procured thermal images of a man’s home to find that he was growing weed.  

Scalia wrote the majority opinion on Kyllo, and said, "The Fourth Amendment's protection of the home has never been tied to the measurement of the quality or quantity of information obtained…. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes." In another case regarding the Fourth Amendment Scalia wrote, "[W]hen it comes to the Fourth Amendment, the home is first among equals."

The United States must be a nation of law and order. While we can’t tolerate individuals brandishing weapons on the streets without cause or reason, the McCloskey case—a near home-invasion by an angry mob—is not an example of an irresponsible couple mimicking the lawlessness of the Wild West. Instead, they are protecting their home, pets, and themselves, and are well within the rights granted to them by state and federal law. These rights must continue to remain paramount in an era where a 300-person mob shouting threats and attempting to break into a person’s private property is reported as nothing more than a "peaceful protest" and the couple trying to keep themselves safe are subjected to a police search and seizure of their property.

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