TRAVERSE CITY, Mich. (Michigan News Source) – On January 20, 2021, fourteen days after the January 6th insurrection at the Capitol and during the COVID-19 pandemic, Grand Traverse County was having Zoom meetings instead of in-person county commissioner meetings, and former County Commissioner Ron Clous brandished a rifle at his residence while participating in the meeting.
The commissioners, in March of 2020, had passed a resolution that opposed “any enforcement or funding measures that would infringe on gun owners’ rights” essentially voting to become a second amendment city. Also at that same meeting, the Grand Traverse County Commissioners had held a board meeting and had invited at least two members of the Proud Boys, a group that has been closely linked to the January 6th insurrection at the Capitol.
According to court documents, during the county’s virtual meeting on January 20th of 2021, a county citizen identified as Kate Dahlstrom spoke. Dahlstrom criticized the commission for allowing the Proud Boys to speak at the earlier county commission meeting, noted that the Proud Boys have been labeled a hate group and an extremist group. She asked the board members to publicly state that they did not belong to “this hate, extremist, and white supremacist group, or any similar group.”
In response, the Board Chairman, Rob Hentschel, chastised her in an “aggressive outburst” and defended the Proud Boys, arguing that they were not a hate group. He ended by telling her that her opinions and political speech were not welcome in the meeting, specifically stating that “I don’t really appreciate this forum being used to spread misinformation about me or groups; you can do that in your magazines or editorials.”
Another Commissioner questioned the Chair’s actions, asking whether it was appropriate to be responding to public comment in that manner. In response to that commissioner’s question, the Chairman again responded in an irritated tone, accusing Dahlstrom of “spreading lies.”
After that, East Bay Township resident Patricia (Keli) MacIntosh spoke during the public comment period. She criticized the commission’s actions supporting the Proud Boys, expressing concern about the Proud Boys’ participation in the violent insurrection at the nation’s Capitol building, which she compared to political violence in their own state – such as the occupation of the Michigan Capitol building by people with assault rifles and the plot to kidnap and murder Michigan’s governor.
MacIntosh then asked the commission to “please make some sort of a public statement for the community that you do not accept the behaviors” of the Proud Boys and similar violent groups. In response, Clous stood up and briefly left the frame, returning with a high-powered AR-15 assault rifle that he displayed to the camera with a smirk. The Board Chairman laughed. According to court documents, Clous admits that he got his rifle in response to MacIntosh’s public comment.
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MacIntosh alleged that Clous’s actions made her feel fearful, intimidated, and physically threatened. Fear and concern for her safety have deterred MacIntosh from speaking at subsequent public governmental meetings, including at meetings held to address Clous’s conduct toward her. MacIntosh also alleged that due to Clous’s actions, she began to receive threatening, anonymous communications late at night and has felt compelled to make a report to the police for her own protection.
This Grand Traverse County Zoom meeting got nationwide attention and also led to calls for Clous to resign, including in a letter written by Traverse City-based attorney Michael Naughton and signed by almost 300 community leaders and residents in the city. Clous did not resign and the commission voted down censuring him as well.
After Clous showed his gun at the meeting, MacIntosh, 74, filed a lawsuit in April of 2021 in U.S. District Court in Traverse City for the Western District of Michigan, against Clous and the county, alleging that Clous unconstitutionally retaliated against her for exercising her First Amendment rights – and that the county had an unconstitutional policy or practice of allowing this kind of First Amendment retaliation. Clous and the county moved to dismiss the lawsuit and Clous asserted a qualified immunity defense. The magistrate judge held a hearing and denied both motions. Clous appealed.
According to the case Harlow v. Fitzgerald, qualified immunity protects governmental officials from suit as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Clous’ attorney had argued that displaying the rifle was his own “expressive conduct” and that it was protected by the Constitution; however, the court said it could be considered an “adverse action.”
Clous argued that he did not violate MacIntosh’s rights because MacIntosh failed to allege an adverse action that would deter a person of ordinary firmness from exercising her First Amendment rights and because his conduct was his own protected expressive speech. He also argued that no clearly established law put him on notice that “merely displaying the gun during a remote Zoom meeting in response to requests to stake a position on Second Amendment issues” violated MacIntosh’s rights.
However, it was decided on Wednesday, May 31st by a federal appeals court that the lawsuit against Clous can move forward. In a 2-1 opinion, the 6th U.S. Circuit Court of Appeals said that Clous has no governmental immunity during this stage of litigation.
Judges Jane Stranch and Stephanie Dawkins Davis said in their opinions, “Virtually smirking and displaying a high-powered rifle at someone during a tension-filled public meeting is pregnant with dangerous meaning.”
Dissenting was Judge Jeffrey Sutton who said no legal precedent fits to keep MacIntosh’s free speech retaliation lawsuit alive.
Clous is no longer a county commissioner as he didn’t see reelection in 2022.
Grand Traverse County administrator Nate Alger did not immediately return a request for comment about the lawsuit.