Mark McCloskey Endorses So-Called 'Make Murder Legal Act'
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St. Louis Lawyer Who Pointed Gun at Black Lives Matter Protesters Endorses Missouri Senate Bill 666, Dubbed the ‘Make Murder Legal Act’

 

Mark McCloskey, an attorney and pardonee-turned-Senate candidate, is leveraging his gun-hero status to support a Missouri bill nicknamed the “Make Murder Legal Act” by its opponents. The legislation, which happens to be numbered S.B. 666, is a Republican-driven effort to upend one of the most standard procedures in criminal law and to expand Missouri’s “Castle Doctrine.”

You’ll likely remember McCloskey as the lawyer who, along with his attorney wife Patricia McCloskey, brandished weapons as Black Lives Matter protesters marched through their gated community in June 2020 following George Floyd’s death. The couple pleaded guilty to firearm charges but, but Missouri Gov. Mike Parson (R) pardoned each of the McCloskeys after their initial twin guilty pleas.

Parson’s widely-criticized decision to pardon the McCloskeys was ostensibly based on Missouri’s “Castle Doctrine,” which authorizes individuals to show force against intruders and trespassers. Now, McCloskey has endorsed a revamped self-defense law that would make it harder for the government to prosecute offenders and even some violent criminals in Missouri.

The McCloskeys attended a Missouri Senate hearing on Wednesday as S.B. 666 was debated.

Here’s what the bill does.

(1)  S.B. 666 changes the burden of proof for self defense.

The bill starts by recapping the current state of criminal law in Missouri in prosecutions where defendants claim self defense.

“Under current law, the defendant has the burden to prove he or she reasonably believed physical or deadly force was necessary to protect him or herself or a third person,” the bill says.

In other words, if a person who is being prosecuted for a crime seeks to defend their actions by claiming they acted in self defense, that person would normally need to prove all of the required elements of self defense. That means the accused must prove that they feared for their safety or the safety of another person, that the fear was objectively reasonable under the circumstances, and that they used force in response to their belief that force was necessary to protect themself or others.

This is about as standard as it gets. And not just for self defense, either.

In most legal contexts, whether in the criminal or the civil world, a defendant seeking to evade liability has the right to raise various defenses. However, it’s usually the defendant’s task to prove the respective elements of any defense raised. If the defendant successfully proves those elements, the defense neutralizes liability. In general terms, prosecutors must prove the elements of a crime beyond a reasonable doubt, defendants must prove the elements of a defense — usually by a lesser standard. In self-defense cases, the ultimate gravamen of the action usually surrounds on the “reasonableness” of the fear articulated by the defendant. “Objective” reasonableness is a big-picture standard that doesn’t measure the defendant’s fear. Rather, it measures whether the situation as a whole should have been perceived as fearful by someone thinking logically in the defendant’s shoes. A defendant whose fears were unreasonable, exaggerated, or blown out of proportion will lose a self-defense claim.

Supporters of S.B. 666, however, wish to change the workload for criminal defendants. So, S.B. 666 seeks to alter those longstanding rules as follows: it “provides that there shall be a presumption of reasonableness that the defendant believed such force was necessary to defend him or herself or a third person.”

A “presumption of reasonableness” means a switching of roles: an accused murderer, for example, would be automatically presumed to have acted in reasonable self defense (that is, if he raises the defense in the first place). Prosecutors would be forced to then prove an official narrative to the contrary by “clear and convincing evidence” — a lesser standard than the usual proof “beyond a reasonable doubt” but still a significant hurdle. The law essentially adds entirely new elements to crimes and thus lengthens the list of what prosecutors must prove. And proving those proposed elements could get tricky when there aren’t independent witnesses, solid forensics, or video evidence of a killing.

If prosecutors can defeat the self-defense claim, they’d then be required to prove the core murder charge beyond a reasonable doubt.

That’s not all, either. S.B. 666 goes a step further to protect those accused of violent crimes.

(2)  S.B. 666 prevents police from even arresting certain offenders.

The bill provides that while “a law enforcement agency may use standard procedures for investigating the use or threatened use of force,” it may not arrest the offender “unless the agency determines that there is probable cause that the force that was used or threatened was unlawful.” Such a change forces police to make decisions usually reserved for prosecutors or even juries.

Under this new regime, cops would need to evaluate an offender’s violence through the lens of presumed self-defense. Unless the police have “probable cause” (meaning an objectively reasonable belief) that a person did not act in self defense, those police are banned from even arresting the suspected offender.

Such a stripping of police power is a bit of a head-scratcher from the law-and-order set. As an editorial in the St. Louis Post-Dispatch put it, “SB 666 doesn’t quite defund the police, but it certainly would defang them.” Indeed, the proposed law muddles the roles of cops and prosecutors, forcing police to conduct a heightened legal analysis about a suspect’s defense claims before even pulling out the handcuffs.

Furthermore, the changes proposed by S.B. 666 threaten to weaken the state’s evidence should any subsequent criminal prosecutions move forward. Police searches conducted incident to lawful arrests do not ordinarily require warrants. However, if the arrest itself becomes forbidden, the corresponding searches and seizures would be a related casualty, crippling the prosecutorial process in many cases.

Missouri Republicans, however, did offer a legislative crumb to “Back the Blue,” though.

(3)  S.B. 666 creates different procedural rules for crimes in which police officers are the victims.

The bill creates a separate set of rules for situations in which violence was committed against law enforcement officers themselves. Per the bill, any time a law enforcement officer is the victim, the burden-of-proof rules go back to normal. In crimes against cops, S.B. 666 would direct the authorities to presume nothing and to leave it to the accused to prove that they acted in self defense.

Per the bill, this exception applies any time “force was used against a law enforcement officer who was acting in the performance of his or her official duties and the person reasonably knew or should have known that the person was a law enforcement officer.”

Therefore, under Missouri’s proposed law, anyone who responds to the fear of police-induced violence has a weaker self-defense claim than those who defended themselves against ordinary civilians.

Let’s look at this concept using hypotheticals that are fresh in the public consciousness. Had any of the bystanders who watched George Floyd die intervened with force against since-convicted murderer cop Derek Chauvin, they would have had to prove their defense-of-another case in full. No benefit of the doubt would be afforded to them. Ahmaud Arbery’s killers, however, would have been within their rights (assuming S.B. 666 was in effect in their state) to thwart their own arrests by claiming that they acted in self-defense — which, of course, was what they claimed, though their efforts were eventually unsuccessful.

This carve-out falls directly in line with other legislative attempts to prioritize police victims over other victims, such as the creation of “Blue Lives Matter” laws.

Had S.B. 666 become law before the McCloskeys brandished their guns in front of peaceful protesters, they’d have also been entitled to a presumption that they were acting in self defense.

Perhaps most shocking of all is the backdrop against which S.B. 666 is set. In 2019, Missouri ranked 7th for gun deaths. In 2020, St. Louis recorded its highest murder rate in half a century.

S.B. 666 was sponsored by Sen. Eric Burlison (R) of the Missouri House of Representatives. Burlison is an investment advisor and not an attorney.

Former Congressional candidate Lindsey Simmons (D) tweeted opposition to the bill Wednesday, calling it “about one of the worst bills” she has ever seen — “[b]ecause this is Missouri and there’s no shortage of racism.”

Mark McCloskey did not immediately respond to Law&Crime’s request for comment.

The text of S.B. 666, as proposed, is below.

[Image via KMOV screengrab]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos