A lawsuit can go forward against a Michigan official who flashed a rifle during a public meeting over video conference, a federal appeals court said Wednesday.
Patricia MacIntosh is suing Ron Clous, alleging he tried to silence her right to free speech when he displayed the rifle during a 2021 meeting of Grand Traverse County commissioners.
Clous has no governmental immunity at this stage of the litigation, the 6th U.S. Circuit Court of Appeals said in a 2-1 opinion.
“Virtually smirking and displaying a high-powered rifle at someone during a tension-filled public meeting is pregnant with dangerous meaning,” said judges Jane Stranch and Stephanie Dawkins Davis.
The incident occurred during the COVID-19 pandemic when the county board met over video conference. During the public comment period, MacIntosh urged commissioners to make a statement opposing anti-government militia groups, a few weeks after the Jan. 6 riot at the U.S. Capitol.
That's when Clous, a commissioner who was participating from home, left the screen and returned with a rifle.
In response to the lawsuit, an attorney for Clous argued that displaying the rifle was his own “expressive conduct” protected by the Constitution. But the appeals court said it could be considered an “adverse action.”
Clous didn't seek reelection in 2022 and is no longer a county commissioner.
In a dissent, Judge Jeffrey Sutton said no legal precedent fits to keep MacIntosh's free speech retaliation lawsuit alive.
“Think of what happened,” he said. “A side view of Commissioner Clous’s lawfully possessed rifle. In that official’s own home. For a few seconds. During a virtual Board of Commissioners meeting. With everyone participating from the safety of their own homes.”
