Do Away With Prosecutorial Immunity For DA’s Who Ignore The Constitution

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Two recent high profile cases have involved DAs who have charged citizens for exercising their 2nd Amendment rights.  The DA’s are wrongly immune from punishment because of prosecutorial immunity.

Our Second Amendment codifies the pre-existing right of U.S. citizens, in the words of Justice Scalia, to “possess and carry weapons in case of confrontation.”

This meaning is strongly confirmed by the historical background of the Second Amendment . . . .  The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”

. . . .

By the time of the founding, the right to have arms had become fundamental for English subjects. . . .  Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999) , cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). . . .  Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. . . .

. . . .

As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) . . . .

It is hard to imagine a more text-book “confrontation” than a violent mob showing up at one’s home.  Likewise, it is hard to imagine any greater infringement on the practice of the pre-existing rights protected under the Second Amendment than a radical District Attorney or Attorney General bringing suit against individuals for confronting such a mob with a gun.  Yet that is precisely what has happened in two recent high-profile cases where rioters have taken to confronting people on private property and in their homes.

In the case of Mark and Patricia McCloskey, the two appeared armed on the property directly outside of their home when at least 100 BLM protestors broke through into their gated community.

The McCloskeys had ample reason to fear violence from the mob.  St. Louis, where they lived, had already been the scene of murders, shootings of police officers, and brutal assaults associated with the BLM riots.  And that doesn’t even begin to count the daily property damage by BLM and ANTIFA rioters that is now at an estimated $1 billion across America.  Moreover, at least one of the rioters on the McCloskey property was openly carrying “a handgun, and another was wearing a bullet-resistant vest with the words, ‘Human Shield’ on it.”

Besides the Second Amendment, Missouri has a Castle Doctrine law with “Stand your ground” provisions, the sum of which raises a legal presumption that a person who has a reasonable fear of assault may defend him or herself with appropriate degrees of force.  Kim Gardner, the Soros-funded radical progressive District Attorney, ignored those laws, called the rioters mere “peaceful protestors,” seized the McCloskeys’ weapons, and now has charged them with unlawful use of a weapon, a felony punishable by up to four years in prison.

As Missouri’s Attorney General wrote in a recent op-ed:

This prosecution has even broader implications than those just pertaining to the defendants: It sends a chilling message to all Missourians that they exercise their fundamental right to self-defense at their peril. Missourians should not fear exposure to criminal prosecution when they use firearms to defend their homes from threatening intruders. Simply put, this case is nothing more than a political prosecution.

There is no realistic chance that the McCloskeys will be convicted for their actions.  Missouri Governor Mike Parson has already called the charges against them “outrageous” and promised a pardon if they are prosecuted.  But not only did DA Kim Gardner charge the McCloskeys, she proceeded to fund-raise off of her decision.

Somewhat the same scenario recently played out in California, where the radical progressive Attorney General of the state, Xavier Becerra, filed firearms charges against David Lacey, the husband of Los Angeles County District Attorney Jackie Lacey, for pulling a gun on BLM activists in March.  The Laceys have received countless threats, including threats to murder them, and the BLM mob that approached their private home in March was targeting the Laceys explicitly.

Melina Abdullah, who helped found Black Lives Matter LA, and other activists approached the house around 5:40 a.m. and knocked on the door. They were met by David Lacey, who Abdullah said “pulled a gun and pointed it at my chest.”

In video footage the activist shared, David Lacey appears to brandish a gun while saying, “Get off of my porch. I will shoot you.”

After a woman asks him to tell Jackie Lacey “that we’re here,” he added, “I don’t care who you are, get off my porch.”

He said he was going to call the police.

Jackie Lacey told reporters at a press conference following the incident that she and her husband called the police and weren’t sure what was happening when he ran downstairs and pulled his gun.

Jackie Lacey said she does not believe it is “fair, or right,” for activists to show up at people’s homes, and the incident wasn’t the first time it happened.

Andrea Widburg, in her post on this travesty at American Thinker, notes that California also has laws on self-defense and a Castle Doctrine, all of which were ignored by Becerra in filing the charge against Lacey.  As she states:

Most of us understand David Lacey’s viewpoint. He and his family have been stalked and received death threats, and suddenly a mob made up of the same crowd of people threatening him is standing on his doorstep demanding entry. There is only one word for that, and that word is “terrifying.” If you cannot use a weapon to order a mob to retreat from your doorstep, you may have a theoretical Second Amendment right but you do not have an actual one.

And therein lies the rub.  In neither case is this a close call on whether the charged individuals had cause to reasonably feel threatened or had the right to brandish a weapon to defend themselves and their homes on their private property.  And that’s simply as a matter of Constitutional law, not even state law.  The charges filed against the McCloskeys and against Lacey are a fundamental denial of their Constitutional rights by progressive prosecutors motivated probably as much by animus against the Second Amendment as motivated by the intention of rendering Americans powerless against progressive mobs.

Unfortunately, these same prosecutors are protected from legal consequences for their actions.  Under the doctrine of “prosecutorial immunity,” these prosecutors have “absolute immunity” from suit.   This is purely judge-made law.  The U.S. Supreme Court in 1976 ruled in Imbler v. Pachtman that prosecutors “cannot face civil lawsuits for prosecutorial abuses, no matter how severe.”  As the Federalist Society explains:

Prosecutors cannot be sued for injuries caused by their own misconduct. For example, even if a prosecutor deliberately withholds exculpatory evidence in violation of professional ethics and a defendant’s constitutional rights, and this willful misconduct results in an innocent person spending decades behind bars for a crime of which they are subsequently exonerated—the prosecutor remains immune from civil liability.

And only in very rare cases do prosecutors suffer any criminal consequence or lose their licenses for outrageous actions and deliberate misconduct, such as happened with Michael Nifong of the infamous Duke Lacrosse case.  The decision to prosecute in the instant two cases is no less outrageous than the Duke Lacrosse case.  Beccera and Gardner are presenting our nation, really, with a Hobson’s choice — do not defend yourself by openly carrying firearms and subject yourself, your property, your lives and those of your loved ones, to the whims of violent mobs or risk being prosecuted and bled financially by activist state attorneys.

This raises a systemic issue that cries out for correction.  Perhaps the most fundamental issue of government was expressed thousands of years ago. Plato in The Republic, summarized by Juvenal as quis custodiet ispsos custodes — who watches the watchers?  It is a question fundamental to our republican system of government.  Our Founders answered the question by crafting a series of checks and balances.  Our judiciary has largely gutted any checks at all on prosecutors (and judges, for that matter.)   Prosecutors who should be standing in awe of the Constitution are instead kneeling in contempt.

It is not necessary to hand the keys to the courthouse to everyone with a grudge against a particular prosecutor.  But in those limited cases where an activist prosecutor engages in willful misconduct or brings a criminal suit in violation of our textual Constitutional rights, that prosecutor needs to be subject to consequences.  There must always be someone to watch the watcher.  But in this case, no one is watching Mr. Beccera or Ms. Gardner, and the suits that they have brought will be a warning to any who would exercise their rights under the Second Amendment.

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