Why we need the 2nd Amendment

defendant must prove the existence of four prerequisites in order for him to have been entitled to use force in self-defense. State v. Chambers, 671 S.W.2d 781, 783 (Mo. banc 1984); State v. Habermann, 93 S.W.3d 835, 837 (Mo. App. E.D. 2002).

Specifically, a defendant must present substantial evidence that,

(1) he did not provoke or was not the aggressor;
The mob of about 500 people walked into their private residence and allegedly hurled insults and threats toward the couple; "The group was “screaming death threats,” he recounted, saying they would “burn my house and kill my dog and what rooms in my house they were going to live in after they killed me.”  Furthermore, Mr. McCloskey stated that one protester called him by name and that another man kept getting closer while “trying to look intimidating.” “I’m not a mind reader but he gave every impression of being there for assault purposes and to be physically threatening,”... It got to the point where I was concerned that I might actually have to shoot.”According to Black's Law Diction, provocation is "the act of inciting another to do something. ... Provocation simply, unaccompanied by a crime or misdemeanor, does not justify the person provoked to commit an assault and battery."  Trespass is a misdemeanor in Missouri.

(2) he had reasonable grounds for believing he was faced with immediate danger of serious bodily harm;
Reasonableness is one of those terms in law that is a little difficult to define, so again, I'll resort to the law dictionary; "Fair, proper, or moderate under the circumstances."  Given the size of the crowd, the alleged threats, insults, etc. coupled with the news cycle (i.e., look what has been going on around the country with some unruly large crowds such as this), one would argue that a reasonable person would feel an immediate danger of serious bodily harm (or death);

(3) he did not use more force than was reasonably necessary; and
I think this is where the most debate would lie.  Mr. McCloskey pointed his gun at the crowd, but did not fire upon the crowd.  Generally, in self-defense situations, the use of force is a 1:1 deal.  That is, if someone were to pull a knife on you, you would be permitted to use deadly force against them believing your life is in danger.  Here, McCloskey didn't actually use force (that's where the assault argument comes into play).

(4) he did everything in his power and consistent with his own safety to avoid the danger. Habermann, 93 S.W.3d at 837; Seals, 487 S.W.3d at 23–24.

Mr. Mcloskey has no duty to retreat, though I suppose he could have called the police, locked themselves indoors, and waited.  

The use of deadly force is justified only when the defender reasonably believes deadly force is necessary to protect himself or another from immediate danger of death or serious bodily harm. State v. Crudup, 415 S.W.3d 170, 175–76 (Mo. App. E.D. 2013). A reasonable belief is “a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief.” State v. Smith, 456 S.W.3d 849, 852 (Mo. banc 2015) (quoting MAI-CR 3d 306.06A[6] (effective January 1, 2009)).



State v. Whipple, 501 S.W.3d 507, 517 (Mo. Ct. App. 2016)

My two cents.  Ultimately, I think this is going to end up being a "mountain out of a molehill" moment on both sides.  Frankly, I'd be shocked if the DA decides to prosecute him and his wife.

Right, but the other side will argue “assault”

You couldn't be more wrong or more foolish. Carry on.

First let me say thank you for your intelligent and cordial response. I agree with you that charges in this case would be surprising, but again for the sake of discussion....

1.) The claims of the homeowners aren't to be taken as truth IMO because they also claimed that the gate was smashed by the protesters as they entered and it clearly was not. The haste with which these people went to the press to get their version of the story out makes me very suspicious of their motives, and the falsity of their story is quite clear. I doubt there were the threats made as the homeowner claims and I also doubt that any of the protesters were visibly armed. In your quote the homeowner claimed he was afraid he was actually going to have to shoot someone, but he doesn't say why he grabbed his gun in the first place.

2.) On the subject of "reasonableness' I'l just ask again why they were the only people on that street who felt so threatened they armed themselves and confronted the protesters. It seems to me they were not reasonable in their reaction.

3.) Granted he didn't shoot anyone but he and his wife did put people in danger by pointing loaded weapons at them. If Mr. McCloskey had fired at the protesters it's likely he'd be facing some serious charges now...the same applies to threatening people unjustly.

4.) You say he has no duty to retreat but the statute you cited says differently. It seems to me that by going outside they needlessly escalated the confrontation and they also undercut any argument that they felt endangered by the crowd that allegedly included armed people.

Again, thanks for the response...I enjoy such discussions.

It seems that we are being asked to believe that there is a private community of very expensive homes and mansions surrounded by a wall and a security gate.  Then that security gate is somehow mysteriously torn down and almost folded in half.  Then an unruly mob of profane protesters storms through the suddenly new opening.  And they had nothing to do with the destroyed gate? Yeah, that sounds logical, especially when you consider there has never been a cellphone video that started filming after the part the owner didn't want you to see.

And maybe Frog can answer this: I've always thought that carrying or brandishing a weapon is a deterrence, but pointing it at someone becomes assault. At the risk of oversimplification, isn't that generally the case?

There is video of someone holding open an undamaged gate to allow the mob in, so it would be inaccurate to say they broke down the gate, and stormed in.

It's unclear WHEN the iron gate was destroyed, and folded in half, but I don't think that's the point.

Mob trespassing into private, gated community is indisputable.