McCloskeys Sue Photographer, Press Outlet Over Photo

Mark and Patricia McCloskey, the St. Louis couple facing felony charges for displaying their firearms as hundreds of protesters marched through their private neighborhood this past summer, have now sued United Press International and UPI photographer Bill Greenblatt, claiming that the photojournalist was trespassing when he snapped several pictures of the couple standing on their lawn with their guns in their hands.

The couple said Greenblatt’s photo has contributed to their “significant national recognition and infamy.” In addition to Greenblatt and the news service, the McCloskeys are suing Redbubble Inc., a San Francisco-based online marketplace for print-on-demand products.

The McCloskeys allege that Greenblatt, UPI, and Redbubble are all profiting from “t-shirts, masks, and other items, and licensing use of photographs bearing Plaintiffs’ likenesses, without obtaining Plaintiffs’ consent.”

Often their image on merchandise sold by Redbubble is accompanied with “mocking and pejorative taglines or captions,” causing them “humiliation, mental anguish, and severe emotional distress,” the suit alleges.

Meanwhile, UPI said recently it was considering whether to send a “cease and desist” order to the couple because of their use of the UPI photo as part of a personal greeting card.

While journalists can film and record from public right-of-ways, the McCloskeys argue that Greenblatt, along with the several hundred protesters, were all trespassing when they entered the couple’s gated, private neighborhood on their way to demonstrate outside of St. Louis Mayor Lyda Krewson’s home on June 28th.

Nine people were originally charged with trespassing after the march, but in late September local prosecutors announced that they wouldn’t pursue the cases in court.

In a statement, City Counselor Mike Garvin wrote, “prosecution is not warranted against these particular individuals,” after municipal court prosecutors reviewed property records of the street as well as video of the June 28 confrontation and interviewed witnesses.

Garvin also noted the attorney for the trustees who own the street did not wish to pursue charges.

We’ll see what happens with the civil lawsuit, but the McCloskeys are no doubt breathing easier after the results of the elections in Missouri on Tuesday. Governor Mike Parson, who’s vowed to pardon the pair if they’re ultimately convicted of unlawful use of a weapon and evidence tampering, handily won another term, ensuring that he’ll be in office when the McCloskey case goes to trial.

In fact, now that Parson has won re-election I can’t help but wonder if St. Louis Circuit Attorney Kim Gardner will push for a plea deal with the couple. It’s possible that the couple would be convicted if the case goes to trial, but it’s far from a done deal, and there are a some big risks for Gardner herself in bringing the case before a jury.

There are still a lot of questions about whether it was the McCloskeys or Gardner’s office that actually tampered with the pistol that Patricia McCloskey held during the protests, and a full-blown trial may end up with some uncomfortable and embarrassing disclosures about how Gardner’s office handled the case.

Given the fact that Gov. Parson has already said that he’ll pardon the couple, the only win that Gardner can really hope to achieve is in the court of public opinion. Is that enough for Gardner, who’s rumored to be thinking of higher office? Perhaps, though I won’t be surprised to see her office quietly move to offer the McCloskeys the chance for pre-trial diversion at some point before a jury is seated.

Of course, with the governor on their side, the McCloskeys have maintained that they’re ready to go to trial, and the threat of prison time upon conviction sounds kind of empty when the likelihood of a pardon exists. Gardner may end up regretting her decision to charge the couple in the first place, because right now it’s more of a political and legal hot potato for the prosecutor than the McCloskeys themselves.