A husband and wife caught on video brandishing firearms at Black Lives Matter protesters outside their St. Louis home were charged with a felony Monday.
Mark and Patricia McCloskey were each charged with felony unlawful use of a weapon by St. Louis Circuit Attorney Kimberly Gardner, according to a statement and documents from her office. The couple forfeited their weapons to police earlier this month after a warrant was issued.
The decision to file charges came after an investigation into the June 28 confrontation by St. Louis police, Gardner said in a statement Monday.
“It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest, and while we are fortunate this situation did not escalate into deadly force, this type of conduct is unacceptable in St. Louis,” Gardner said.
Her office said it is willing to recommend a diversion program for the couple, a deal that avoids a court trial and conviction record often offered for first-time offenders of certain non-violent crimes.
“I believe this would serve as a fair resolution to this matter,” Gardner said in her statement. “We must protect the right to peacefully protest, and any attempt to chill it through intimidation will not be tolerated.”
Attorney Joel Schwartz, who is defending the couple, said in a statement to NBC News on Monday that he feels “unequivocally” that no crime was committed.
“I, along with my clients, support the First Amendment right of every citizen to have their voice and opinion heard,” Schwartz said in his statement. “This right, however, must be balanced with the Second Amendment and Missouri law, which entitle each of us to protect our home and family from potential threats.”
Protesters entered the affluent St. Louis neighborhood of West Central End through a gate that opened onto Portland Place, according to the criminal complaint Monday. Protesters were then confronted by the McCloskeys, who stood on their property with a semi-automatic rifle and handgun.
A statement released on behalf of the couple after video of the incident circulated on social media said the McCloskeys were “in fear of imminent harm."
Police have said that the McCloskeys told officers during an interview that the protesters were yelling obscenities and threats of harm as they broke into the neighborhood.
Daniel Shular, a freelance photojournalist who was at the protest, disputed the account. Schular said he didn't see anyone breaking into the neighborhood and recalled seeing protesters simply strolling through an open gate.
"I kind of turned around to take some pictures of people coming through the gate, then I turned back around and by then he had his long gun in his hand," Shular told NBC News at the time. "And the woman came out with a pistol and started pointing it with her finger on the trigger at everybody."
The Missouri Attorney General Eric Schmitt filed a brief Monday seeking to dismiss the charges against the couple based on Castle Doctrine law, according to a release from his office. The brief states that citizens have the right to use firearms "to defend one’s person, family, home and property" and the law authorizes them to use firearms to deter assailants.
"This provides broad rights to Missourians who are protecting their property and lives from those who wish to do them harm,” Schmitt said in a news release. “Despite this, Circuit Attorney Gardner filed charges against the McCloskeys, who, according to published reports, were defending their property and safety."
Missouri Gov. Mike Parson said in an interview with "Marc Cox Morning Show" on 97.1 FM on Saturday that he’d consider a pardon for the couple if they were convicted of a crime from the incident.
Parson told the interviewers that the couple had a right to protect themselves and that Gardner was making the situation “more political” with possible charges. When asked whether he could pardon the couple upon a conviction, Parson said that he expected he would.
“Right now, that’s what I feel,” Parson said. “You don’t know until you hear all the facts and all that, but right now, if this is all about going after them because they did a lawful act, then yeah. If that scenario kept, then I don’t think they’re going to spend any time in jail.”