CINCINNATI (CN) — A county commissioner who endorsed alt-right extremist group the Proud Boys and brandished a high-powered rifle in response to a constituent's plea for a denunciation of the U.S. Capitol insurrection argued Thursday at the Sixth Circuit he is entitled to immunity from her free speech retaliation claims.
Patricia MacIntosh has received threatening phone calls and says she now attends therapy to "try and regain a feeling of safety in her home and community" after Grand Traverse County Commissioner Ron Clous brandished one of his firearms during the public comment portion of a virtual board meeting held in early 2021.
Just weeks after the Jan. 6, 2021, attack on the nation's capitol, MacIntosh spoke at the county commissioners meeting via Zoom and urged members to take a stand against the violence and denounce the extremist groups behind the attempted insurrection.
In response, Clous, who had previously described the Proud Boys as "the most respected folks ... [who] treated us with respect," left the meeting momentarily, only to return with an AR-15 assault rifle.
MacIntosh says Clous brandished the weapon with a "menacing smirk" and "had it out from his body displaying it in a threatening manner" in direct response to her request for a denunciation of violence, which she claims had a chilling effect on her First Amendment rights.
She filed suit and a federal judge denied Clous's motion to dismiss on the grounds of qualified immunity. He then appealed to the Cincinnati-based Sixth Circuit.
In her brief to the appeals court, MacIntosh argued Clous' actions were clearly indicative of a threat of future harm and that "an overwhelming majority [of viewers] were horrified by Clous' behavior and called for his resignation."
Clous set forth a different version of events in his brief, claiming he brandished his weapon to show support for the Second Amendment, which had been discussed earlier in the meeting.
He argues MacIntosh "challenged" he and the other county commissioners to make known their thoughts on the Proud Boys and gun rights in general, which prompted him to retrieve his AR-15 from another room.
"The entire interaction with the firearm on screen," the brief says, "lasted six to seven seconds. Defendant made no verbal remarks while doing so ... [and] his firearm was devoid of its clip where the ammunition is stored and therefore was unloaded. It was never pointed at the camera, and his finger never touched or came near the trigger."
Attorney Marcy Stepanski of Rosati Schultz argued Thursday on behalf of Clous and defended his right to espouse unpopular viewpoints.
"I am not here to defend the Proud Boys," she clarified. "Not a fan. But [Clous] is entitled to an unpopular opinion."
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked Stepanski about her client's mindset during the meeting.
"I'm just trying to figure out why he did what he did," Sutton said.
The attorney detailed the events that led up to MacIntosh's comment, including a discussion on a previous resolution to designate Grand Traverse County a "gun sanctuary," and also pointed out that MacIntosh spoke about gun culture in general and the Proud Boys specifically.
U.S. Circuit Judge Jane Stranch, an Obama appointee, expressed doubts about Clous' argument he displayed his rifle in jest.
"MacIntosh asked for a statement [about the Proud Boys]," she said, "and in response to her request, he goes and gets his gun and displays it. His facial expressions do not seem to be saying, 'It's a joke.'"
"Unless it demonstrates a form of imminent threat," Stepanski said, "it is protected speech."
Attorney Blake Ringsmuth of Ringsmuth Wuori argued on behalf of MacIntosh and fielded several questions from Sutton at the outset of his allotted time.
"What is the threat? What are the inferences we should draw?" he asked.
"Future harm," Ringsmuth answered. "'Be quiet. I don't want to hear that' ... When you bring a gun and you're not at a gun rally, there is a threat in the air."
Sutton agreed that a gun can be used to suppress speech but emphasized that MacIntosh's suit brings a claim for retaliation, not speech suppression.
"We do have a plausibility issue," the judge said.
"The context of what is happening is extremely important," the attorney answered. "This is a heated debate between citizens and elected officials. ... [MacIntosh] didn't go to any more meetings because she was afraid."
Sutton remained skeptical.
"I'm just trying to figure out the retaliation," he said. "The adverse action is the trickiest part of the case."
Stepanski latched on to her opposing counsel's argument about context during her rebuttal and reiterated the subjects of the commissioners' meeting were gun control and gun culture.
"This is not a random display of a gun," she told the panel. "She's asking, 'Please make a public statement about this.'"
The attorney also pointed out her client has chosen not to seek reelection to the board.
"The remedy is the election box, and it worked," she said.
U.S. Circuit Judge Stephanie Davis, appointed in June by President Joe Biden, rounded out the panel.
No timetable has been set for the court's decision.
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