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Could Those Two St. Louis Attorneys Have Legally Shot Trespassing Protestors?

By Joseph Fawbush, Esq. on July 01, 2020 | Last updated on August 10, 2021

Two St. Louis, Missouri, lawyers are in the news after brandishing an AR-15 and handgun at protesters who crossed in front of their property on the way to the Mayor's house. On June 30, the Chief Prosecutor's office in St. Louis announced it was investigating the couple, prominent personal injury attorneys. 

Accounts of the incident differ, but it has led to an increased awareness of Missouri's "castle doctrine," which is a variation of the "stand your ground" laws that passed in numerous states several years ago. Missouri has revised its statutes on the use of self-defense multiple times in the last decades, most recently in 2017. Its law is much more expansive compared to other states.

Setting aside certain disputes of fact over what happened, there is an ongoing debate regarding whether the homeowners in question had the right to use deadly force even if the protesters had been just trespassing. Is it always lawful to use deadly force against a trespasser? Surprisingly, the law around this question is unresolved in Missouri.

Self Defense Law in Missouri

Missouri expanded its so-called "stand your ground" law to include anywhere a person has the legal right to be. In other words, you do not have a duty to retreat from conflict even if you are outside your home or car. However, this does not mean self-defense is always an appropriate defense to homicide. You still cannot be the "initiator" of conflict, for example. But do these qualifiers also apply to Missouri's castle doctrine?

Missouri's Castle Doctrine

Just because Missouri has enacted a castle doctrine does not necessarily mean that a homeowner is justified in using deadly force against trespassers in all cases. Section 563.041 says that the use of deadly force is lawful when protecting against a reasonable fear of property damage or tampering "only when such use of deadly force is authorized under other sections of this chapter."

This refers to section 563.031.2, which states: "A person shall not use deadly force upon another person . . . unless such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person."

That would appear to say homeowners can use deadly force against any trespassers.

However, in a 2016 case decided before the most recent amendment (State v. Whipple), the Missouri Court of Appeals for the Eastern District interpreted the two subsections in §563.031 to be read together. Section 563.031.1 allows for self defense under a reasonableness standard. According to the court in Whipple, therefore, "pursuant to the statute, the lawful occupier of a dwelling . . . is entitled to use deadly force to repel an unlawful entry, but only if he meets the requirements of self-defense set out in section 563.031.1." In other words, the court read the castle doctrine to include a reasonableness standard. However, this analysis has been questioned, and it is unclear if the Missouri Supreme Court would agree (for more on this, see Westlaw's 32 Missouri Practice Series § 9:4. Subscription required). Since the 2017 amendment did not specifically address the issue, it is theoretically still good law. It's an issue that may need to be further clarified by Missouri courts or legislators.

Could the Homeowners Have Fired on the Protesters?

Some Missouri lawyers have argued the two homeowners should be disbarred, at minimum. Others argue that the lawyers were entirely justified in their actions and behaved responsibly, as no one was injured and protesters left the premises.

Whatever your take on Missouri law – which, to reiterate, as it stands is unclear - please don't fire an AR-15 at a crowd of protesters even if they are trespassing.

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