The mob streams past a “private property” sign conspicuously mounted on the gate enclosing a private community along the private street, Portland Place, in St. Louis. About 100 feet away, a barefoot Mark McCloskey emerges from the first house on the right. The privately owned sidewalk to the mayor’s house passes right by the McCloskey residence. McCloskey can be heard repeatedly screaming what the sign outside the gate politely warned, “This is private property! Get out of here! All of you! Get the hell out of my neighborhood. This is a private neighborhood, get out! This is private property! Get out!”
The mob responds by chanting, “Whose streets? Our streets!” At least two of the protesters appear to try to deescalate the situation asking McCloskey to calm down. One interposes himself between McCloskey and the crowd, facing the crowd in an apparent effort to steer them away from the McCloskey property.
But a female protestor barks back, “Fuck you!” and then, “This is a public street, asshole.” Another voice shouts, “This is the sidewalk.” Then, mockingly, “call the police, you idiot.” Another voice can be heard shouting something about the “goddamn fence.”
According to reports, McCloskey called 911 before confronting the crowd. McCloskey claims the protestors entered the private area by smashing through the gate. But this video shows protestors streaming through an open gate still intact. Somebody damaged the gate before the evening was out, but there does not appear to be video available showing how it happened.
The armed McCloskeys left their house without putting shoes on their feet. They stood with their backs near the wall of their home as the crowd continued to taunt and curse at them. Several of the protesters stopped to engage the McCloskeys from the sidewalk. A few stepped onto the McCloskeys’ grass.
There is a gap in the video record after the crowd reaches the McCloskey property. McCloskey claims that one protestor took pistol magazines from his pocket and tapped them together threatening, “You’re next.”
McCloskey says the crowd threatened to burn down his house and shoot his dogs. Although these threats were not captured on video, one can see at least one protestor shaking a finger or a fist at the McCloskeys during the confrontation. The protester’s remarks are not audible.
What the Law Allows
Missouri law appears to permit the brandishing of a weapon to repel a threatening trespasser who refuses to leave. In 2016, the Missouri Court of Appeal for the Eastern District opined on an incident in which Richard John Whipple displayed a firearm to force a trespasser off his land. Whipple and the trespasser had bickered over an allegedly stolen bicycle. The trespasser drove his vehicle to the Whipple residence to continue another episode of the conflict. The trespasser refused to exit Whipple’s property after Whipple ordered him to leave.
Merely brandishing a weapon to repel threatening trespassers does appear to be legal under Missouri law. The Whipple Court wrote:
Viewing the whole record in the light most favorable to Defendant, we find the testimony that Mr. Sanning was on the Whipples’ property uninvited, refused to leave upon two requests, and threatened Defendant with bodily harm was substantial evidence from which a jury could find that Defendant reasonably believed he or his family was facing an immediate danger of death or serious bodily harm.
To show they were there legally, the protesters would need to prove they entered the Portland Place compound under invitation. While the videos do show that at least some of the protestors entered through an open gate, the fenced area was clearly marked “Private Property.”
Missouri law defines criminal trespass as entering or remaining on private property that is “fenced or otherwise enclosed in a manner designed to exclude intruders or as to which notice against trespass is given by . . . actual communication to the actor or posting in a manner reasonably likely to come to the attention of intruders.”
Thus, because the mob marched past the “private property,” sign and ignored the McCloskey warning that they were on private property, the assembly appears to have been unlawful.
As the ACLU notes, “As a rule, the First Amendment doesn’t give you the right to engage in free-speech activities on private property unless you own or lease the property, or the owner has given you permission to use the property for speech.”
A Prosecutor’s Dangerous Threats
Shortly after news of the protest broke, St. Louis prosecutor Kim Gardner made a public statement.
“I am alarmed at the events that happened over the weekend, where peaceful protestors were met by guns and a violent assault,” she said. “We must protect the right to peacefully protest, and any attempt to chill it through intimidation or threat of deadly force will not be tolerated . . . My office is currently working with the public and the police to investigate these events.”
Make no mistake,” she added. “We will not tolerate the use of force against those exercising their First Amendment rights, and will use the full power of Missouri law to hold people accountable.”
Gardner made no indication that she intended to prosecute any of the protesters for trespass.
In Minneapolis alone, insurers believe damages will exceed $25 million due to the “mostly peaceful” protests that rampaged after the tragic George Floyd death. In the wake of such devastation, insurance companies are expected to raise rates by as much as a factor of 10, according to the National Association of Business Owners and Entrepreneurs. In places where insurers suspect rioting could repeat, these rate hikes will drive out replacement businesses, leaving long-term damage to the economic viability of the affected communities.
Gardner’s public statements vilifying the McCloskeys are dangerous. She seems to be publicly abusing her prosecutorial discretion to withhold protection from private property owners in the path of angry mobs.
Based on the mob’s taunting invitation to the McCloskeys to “call the police,” these angry leftists seem to understand that they have carte blanche to intimidate private property owners. Calling the police is futile if the prosecutor upholds a “right” for the mob to use private property to express its rage.
Businesses and private capital will eventually flee jurisdictions where prosecutors protect mobs. Economic deserts that breed greater misery will be the legacy of the mobs. But this cycle simply will lead to bigger and angrier mobs. That’s a feature, not a bug, of the growing revolution seeking to “burn it all down.”