Pardon does not void McCloskey’s gun forfeiture, Eastern District rules

Mark McCloskey is still not getting his guns back despite a gubernatorial pardon, the Missouri Court of Appeals Eastern District ruled on Dec. 26.

The case is tied to the criminal prosecution of McCloskey and his wife, Patricia, after they famously brandished weapons outside their St. Louis home in June 2020 as protestors marched by on a private street.

McCloskey was charged with unlawful use of a weapon, a felony, but pleaded guilty to misdemeanor fourth-degree assault, forfeiting ownership of the weapons. However, Gov. Mike Parson soon pardoned both McCloskey and his wife, and McCloskey filed a petition to get back the weapons.

St. Louis Circuit Judge Joan L. Moriarty rejected the claim, stating McCloskey still had to follow through with his end of the plea agreement. McCloskey appealed, saying the pardon restored all forfeited rights of citizenship and removed all legal disadvantage.

But a unanimous Court of Appeals said the scope of the pardon ends at the obliteration of the conviction.

“The law recognizes the difference between a conviction and guilt. Here, McCloskey pleaded guilty to misdemeanor assault and voluntarily forfeited his firearms in exchange for the State dismissing a felony charge punishable by imprisonment. Thus, his inability to recover his firearms is not a legal disqualification, impediment, or other legal disadvantage that is a consequence of his conviction. Rather, the permanent forfeiture is a consequence of his guilt,” Judge James M. Down wrote in the opinion, with which Judges John P. Torbitzky and Michael S. Wright concurred.

McCloskey called that a distinction without a difference. He argued that the cases the court was guided by, such as Guastello v. Department of Liquor Control, are not comparable to his case. In Guastello, the plaintiff pleaded guilty to selling liquor on a Sunday but was pardoned. The Department of Liquor Control denied his application for a new liquor license because the relevant statute does not allow a person convicted of a liquor law violation to receive a new license.

“There is nothing in the statute that I pled to that says that if you plead guilty to this statute, you can’t have a gun,” McCloskey said.

He also argued that, if his bargain had involved an agreement to incarceration, that agreement would have been voided by the pardon, so the agreement about the weapons should be treated similarly.

The McCloskeys are both attorneys and were placed on probation by the Missouri Supreme Court in early 2022, but that probation is over, and they are both in good standing. McCloskey said he is representing himself, with his wife’s assistance, because he has 40 years of legal experience and sees the case as straightforward. But more importantly, he did not want to make anyone else do it.

“These days, if you take the wrong legal position, under the current cancel culture and intimidating environment in which lawyers exist — talk to John Eastman about it, talk to Kari Lake’s lawyers about it — if you take the wrong position and the court rules against you, you get prosecuted criminally and you get sued civilly,” he said. “So, I would not impose a duty of representing me on anybody for fear of what might happen to them if they have to take strong positions.”

McCloskey plans to appeal.

“Until the last court says no, we’re going to keep battling to get this done right,” he said.

The Missouri Attorney General’s Office and St. Louis City Counselor’s Office did not immediately respond to requests for comment.

The case is McCloskey v. State of Missouri et al., ED111639.