The dissent argued that Clous’s actions were not sufficiently adverse because he never pointed the muzzle of the rifle towards the camera and because MacIntosh continued to speak through her allotted time. The majority did not consider the behavior less threatening simply because it took place in a virtual, rather than in-person, meeting. The decision on qualified immunity involved two inquiries: (1) whether MacIntosh alleged conduct that violated a constitutional right, and (2) “whether the right was ‘clearly established such ‘that a reasonable official would understand that what he is doing violates that right.’” The majority found MacIntosh’s allegation that Clous threatened to shoot her over her speech was plausibly an adverse action that would deter a “person of ordinary firmness” from exercising her First Amendment rights. Stranch affirmed the district court’s denial of MacIntosh’s motion to dismiss. The defendants filed an interlocutory appeal to the Sixth Circuit. He found that MacIntosh had pled a plausible claim and that qualified immunity was not appropriate at the motion to dismiss stage because it was clearly established that a government official cannot retaliate against a citizen for criticizing a government official. A magistrate judge denied the motion to dismiss, ruling from the bench. She characterized the encounter as “a threat with a deadly weapon that interpreted as ‘a symbolic message to say ‘stop or else’ he would use that weapon against her.’” The defendants filed a motion to dismiss arguing that MacIntosh failed to state viable claims, and Clous asserted a qualified immunity defense. MacIntosh alleged that Clous’s actions made her feel fearful, intimidated, and physically threatened.
MacIntosh subsequently sued both Clous and the county, alleging a First Amendment retaliation claim against Clous and an unconstitutional policy or practice claim against the county. Clous admits he displayed his rifle in response to MacIntosh’s public comment. Commissioner Clous walked off screen, returned holding a rifle, and smirked at the camera. MacIntosh then asked the Commission to make a public statement denouncing the Proud Boys and similar groups. Patricia MacIntosh, a citizen of Grand Traverse County, used her allotted time to express her concerns about the Proud Boys’ involvement in occupying the Michigan capitol in 2020 and storming the United States Capitol just two weeks prior. The Board Chairman responded aggressively in defense of the Proud Boys and accused those attendees of “spreading lies.” During the public comment portion of the meeting, multiple attendees criticized the Commission for inviting the Proud Boys to speak at a prior meeting in support of a resolution designating the County as a “Second Amendment Sanctuary” (for more background on “sanctuary” ordinances, see our past posts here and here). On January 20, 2021, the Grand Traverse County (Michigan) Board of Commissioners held a public meeting over Zoom where the Commissioners, including Ron Clous, were visible on video. The Sixth Circuit recently cleared the way for a district court case that will address the complicated interplay of gun displays, online speech, and qualified immunity.
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