ST. LOUIS — The lead St. Louis police detective investigating the McCloskey case refused to sign at least two versions of court documents prosecutors drafted, according to a review of those documents obtained by 5 On Your Side.
In addition, police contend at least one person in the crowd was armed and another was wearing a bullet-resistant vest, after analyzing videos taken June 28, when the couple confronted protesters with guns.
The case has attracted national attention since photos and video of the couple pointing guns at trespassing protesters went viral.
Critics – nearly all Republicans – have said Circuit Attorney Kim Gardner should not charge Mark and Patricia McCloskey because the state’s Castle Doctrine and stand-your-ground laws allow them to defend their property against perceived threats.
The documents obtained by 5 On Your Side include an email Gardner’s Assistant Circuit Attorney Chris Hinckley sent to the lead investigator on the case, Sgt. Curtis Burgdorf. Hinckley emailed police the day before the McCloskeys were served with a search warrant, stating it needed to happen “now.”
“At this point, everything points to these weapons being real and loaded, but no one has asked or confirmed,” he wrote. “Come trial, they’ll say they were waiving around a BB gun and an air rifle.”
Hinckley also wrote to Burgdorf’s commander, Maj. Angela Coonce.
“Our office is receiving inquiries from the public and press about a warrant application and potential charges. We’ve thus far said the matter ‘remains under investigation.’ I’d really like to avoid pointing to a police follow-up request as the hold-up, but I won’t control the messaging if this goes on any longer. Please see what you can do to help this along. Again, I’m asking for priority on the firearms issue.”
The search warrant allowed officers to seize the guns the McCloskeys used during the encounter. The rifle Mark McCloskey used was intact when it arrived at the crime lab. The pistol Patricia McCloskey used was not, according to documents obtained by 5 On Your Side.
Hinckley ordered the crime lab to disassemble and reassemble Patricia McCloskey’s gun and signed a court document stating that it was “capable of lethal use” at the time she pointed it at protesters.
In a motion, Gardner wrote that the law allows prosecutors to say both of the McCloskeys guns were readily capable of lethal use, “even without proof that they were functional or loaded at the time of the incident.”
The McCloskey’s attorney, Joel Schwartz, said Patricia McCloskey’s gun was not functional because it was once used as a prop in a trial. The McCloskeys are both attorneys.
He said Gardner’s interpretation of the law is wrong.
“It’s a loose interpretation of the statute and the law requires a weapon to be operable at the time of an offense,” he said.
A spokeswoman for Gardner, a Democrat, said she could not comment on a pending case.
Hinckley also wrote the document the lead detective did sign, known as the probable cause statement.
But it went through at least two revisions after Burgdorf outlined 14 concerns he had about the document, 5 On Your Side has learned.
Among those concerns:
- Hinckley characterized the protest as “peaceful and organized” and that it was “calling attention to racial inequities in the criminal justice system.” Burgdorf wrote that the evidence he gathered showed the protest was to call for the resignation of Mayor Lyda Krewson. The final document called it “a protest march.”
- Hinckley wrote that Patricia McCloskey’s was “armed with a semi-automatic handgun.” Burgdorf wrote the phrase should read, “What appears to be a semi-automatic handgun.” Hinckley responded, in part, “You cannot be serious with this one. Again, this is really problematic.” Ultimately, the document read: “What was later determined to be a semi-automatic handgun.”
- Hinckley called Mark McCloskey’s gun an “assault” rifle. Burgdorf called the word “assault” a propaganda term. Hinckley disagreed, but it was left out of the final document.
- Hinckley wrote that the protesters passed through an “open gate” onto private property. Burgdorf said he didn’t know whether the gate guarding the private street was open when protesters went through it, but that, at some point, it was damaged. Hinckley responded: “Your points here are really problematic. It seems to go beyond oversight and into purposeful ignorance. I suggest you very quickly re-assess this evidence.” Ultimately the document Burgdorf signed reads, “protesters walked through a gate.”
- Hinckley wrote that Mark McCloskey’s gun was “visibly loaded with an ammunition clip.” Burgdorf wrote that he would have to verify that detail because it wasn’t mentioned in his report or interviews with them. Hinckley wrote back “Seriously??!!” Ultimately, the document did not include the phrase Hinckley wrote.
- Hinckley wrote that both victims, identified only by their initials, “feared that the defendant might fire her weapon due to her finger being on the trigger and her highly agitated demeanor.” Burgdorf wrote that the term “angrily” was subjective and he didn’t like it. Hinckley wrote, “It’s a fact and an element of the offense.” The final document did not include the word "angrily".
5 On Your Side also obtained a voice mail Hinckley left Burgdorf after he wrote his response to Burgdorf’s objections.
On it, he states: “Curtis, you need to call me back. I wrote a long email to you trying to ask a bunch of questions about whatever it is you said some was (expletive). Now we need to straighten this out because I’m about done with this crap. Call me back.”
Since the couple was charged July 20, Burgdorf’s investigation has continued, according to the documents.
He noted in follow up reports that at least one of the protesters was armed with a handgun, and another was wearing a bullet-resistant vest with the words, “Human Shield” on it.
Some of the phrases he was able to decipher from the footage collected by prosecutors from protesters included:
“You own a business. Your business is gone.”
“We coming back baby.”
“You ain’t the only (expletive) with a gun.”
“They coming back to your house.”
In another livestream video, Burgdorf wrote a man was heard saying, “I was in front so I was the one who opened the gate. The gate was broken after they pulled a gun. What law did we break? We keep guns there but not for show though. Not to look a certain way, but for use. If they would’ve shot then they would’ve been put down.”
The only thing Burgdorf wrote from what he could hear from the McCloskeys included Patricia McCloskey shouting “Go,” as she pointed her gun at demonstrators.