A scene from a standoff at a protest in St. Louis raced across the internet Sunday night: A middle-aged couple, standing outside their expensive home, brandishing and pointing guns at protesters walking past on the sidewalk while shouting back and forth with them.
Videos shot at the scene provoked instant partisan reactions. Many liberals denounced the homeowners as racists, or gun nuts, or both; many conservatives pointed out the protesters were trespassing on a private street—had in fact damaged a gate to enter a private neighborhood—and applauded the couple for taking action to protect their home.
To unpack some of the legal issues at play here, we spoke with Stephen Gutowski of the Washington Free Beacon—one of the country’s best reporters on firearms issues.
Andrew Egger: If you’re a homeowner in this couple’s shoes, what are your rights and what would be crossing the line?
Stephen Gutowski: It varies from state to state. Missouri, to the benefit of this particular couple, has a very expansive castle doctrine, is how it’s referred to. You know, your home is your castle, essentially. Most states, usually that will mean that if someone actually unlawfully enters your dwelling, that you can use deadly force against them. The concept is that if they’ve broken into your home, they likely pose a threat to you, and you don’t necessarily need to do 21 questions with them before you can reasonably assume they’re a deadly threat.
Now in Missouri, it seems, they have an expanded section in there that essentially expands the use of deadly force to your private property, not just your actual dwelling. So in this case, it seems like they’re protected. It wasn’t necessary for someone to actually break into their home for them to threaten the use of deadly force—which is essentially what they did by pointing their guns at several of the protesters. … Now, of course, that doesn’t necessarily mean that what they did was the best course of action.
Egger: From what I’ve been able to gather, at one point the protesters just opened these gates and walked through into this private neighborhood. And then at some later point, protesters also damaged the gates in some way.
Gutowski: Yeah, that’s what it appears like. There’s a video floating around of when people first entered, and the gates weren’t broken at that point. But now there’s pictures of the gates being broken, so they must have been damaged at some point.
You can see the initial interaction there, the husband comes out and is essentially yelling that it’s a private neighborhood and that he wanted people to leave. And there clearly was some confusion among the crowd, because people are yelling back at him that they’re on a public street, which they weren’t.
Egger: In this case, the couple in question were on their private property, and the protesters were apparently trespassing, not necessarily on their property, but on a private street. To what degree is that right to protect yourself transferable in that gray area? It does seem there’s an argument to be made that they exceed the bounds of that by brandishing and threatening people who are on a private street, but not their private property.
Gutowski: Yeah, I do think there’s still a controversy there about whether these people are on the couple’s actual private property, or if the sidewalk they were walking on was part of the private street, not necessarily owned by the couple. That does provide a complication in terms of the Missouri law.
The statute itself says that you can’t use deadly force except for under certain exceptions. And one of those is when such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual, or occupied by somebody who’s been giving a specific authority by the property owner.
So if this crowd was not on their private property or attempting to enter the private property, then it may be a different question in terms of the legality of it.
I think in this case you have a situation where you can have people coming from two different approaches and finding things to support their views. The homeowners, if you’re inclined to take their side, you can certainly make an argument as to why they were afraid: There was a crowd trespassing on a private street that they live on, and there’s been violence in the area and obviously quite a lot of violence and property destruction over the last several months in the United States. And if you’re inclined to side with the protesters, they were making their way to protest the mayor at her house, which they did. They proceeded on past this home. And there weren’t any reports of any property damage or looting or violence associated with this particular protest.
Egger: What about the statutory question of wielding a gun versus brandishing one? Because obviously these homeowners didn’t just come out of their house—they were waving these guns around, pointing them at various points at protesters.
Gutowski: Certainly what they were doing would qualify as brandishing in most states. Brandishing involves, generally speaking, an intent to intimidate or threaten someone with a firearm. So open carrying is not necessarily brandishing, just carrying a firearm around on your person is not inherently considered a threat in most states. But carrying a firearm in a way that is intended to convey a threat, or while carrying a firearm, if you make a threat or point the firearm at somebody, that often qualifies as brandishing.
The question here is whether the brandishing is illegal, right? You can also question whether it’s responsible—that’s a whole other question. There are plenty of firearm instructors that I’ve seen saying this is not the right way to handle this situation.
In most states what they did would qualify certainly as brandishing. But given that Missouri’s castle doctrine allows you to use deadly force—not just the threat of deadly force, but the actual use of deadly force, to prevent someone from unlawfully entering your private property, I’d say they’re probably also covered under brandishing.
This piece has been edited to include additional content from the interview.
Photograph by Laurie Skrivan/St. Louis Post-Dispatch via AP.