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Litigation Highlight: Split Sixth Circuit Panel Allows Retaliation Claim based on Zoom Rifle Display to Proceed

  • Date:
  • July 21st, 2023

By: Zeke Tobin

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.

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. 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). The Board Chairman responded aggressively in defense of the Proud Boys and accused those attendees of “spreading lies.”

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. MacIntosh then asked the Commission to make a public statement denouncing the Proud Boys and similar groups. Commissioner Clous walked off screen, returned holding a rifle, and smirked at the camera. The Chairman of the Commission laughed. Clous admits he displayed his rifle in response to MacIntosh’s public comment.

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. MacIntosh alleged that Clous’s actions made her feel fearful, intimidated, and physically threatened. She characterized the encounter as “a threat with a deadly weapon that [she] 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. A magistrate judge denied the motion to dismiss, ruling from the bench. 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. The defendants filed an interlocutory appeal to the Sixth Circuit.

In a 2-1 decision, Judge Jane B. Stranch affirmed the district court’s denial of MacIntosh’s motion to dismiss. 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. The majority did not consider the behavior less threatening simply because it took place in a virtual, rather than in-person, meeting. 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 cited multiple cases where a government official’s use of physical threats to deter speech was held to be a First Amendment violation and found that, therefore, Clous had fair warning that he was violating a clearly established constitutional right by displaying his rifle to MacIntosh. The dissent by Chief Judge Jeffrey Sutton characterized Clous’s conduct more narrowly and observed that no precedent exists involving the display of a weapon during a virtual meeting specifically. The dissent would have dismissed the case on qualified immunity grounds.

This case presents a novel fact pattern about the display or brandishing of firearms in virtual settings, an issue which is likely to arise in the future given the prevalence of virtual meetings and communication since the onset of the COVID pandemic.

The Michigan Penal Code defines brandishing as “to point, wave about, or display in a threatening manner with the intent to induce fear in another person.” In Michigan, brandishing a firearm in public is a misdemeanor offense (peace officers and those brandishing a gun for lawful self-defense are exempted from the criminal prohibition). In the abstract, it appears that the brandishing statute could apply here. The meeting was open to the public, and the statute does not require the display to occur in-person or be accompanied by any specific verbal threat. At the same time, MacIntosh was in no threat of any imminent physical harm. Even if Clous had pointed the rifle at the camera, he was only capable of inflicting physical harm upon himself or his own computer.

Nonetheless, Clous admitted that he displayed his rifle in response to the criticisms of the Proud Boys, whose members are known to dress in “tactical” clothes and openly carry firearms at protests. What exactly the Proud Boys normally intend to communicate by openly carrying guns is debatable, but ostentatious gun displays in general are often received as attempts to intimidate and can dissuade people from participating in public life in ways they normally would. For example, the presence of armed vigilantes at Arizona ballot drop boxes led to voter intimidation complaints in the 2022 election, and the Michigan legislature canceled legislative sessions in the wake of the 2020 state capitol occupation. Ultimately, the Michigan Attorney General’s Office chose not to pursue criminal charges after determining there was insufficient evidence of malicious intent (intent to induce fear in another person, namely MacIntosh).

Even when the conduct does not clearly violate criminal brandishing prohibitions, the display of a firearm can send a threatening message beyond the immediate situation, and virtual displays have garnered significant controversy recently. NBA superstar Ja Morant has been suspended multiple times for  displaying a handgun while on a livestream video. Morant was not accused of doing anything illegal, but the NBA has nevertheless imposed suspensions for “alarming and disconcerting” behavior and noted that “other young people [may] emulate [Morant’s] conduct.” In April 2020, a Harvard Law student displayed and cleaned a handgun on video during a virtual class. At the time, Harvard prohibited firearms on campus but had no guidelines on displaying a firearm in a virtual academic setting. The display of the firearm was likely distracting to other attendees, and one classmate said, “I was worried I was going to watch my peer accidentally shoot himself. None of us had any way to know the gun was loaded or unloaded.”

These situations illustrate the uncertainty surrounding brandishing prohibitions and the line between innocuous gun displays (especially in states where open carry is legal) and conduct that might be reasonably interpreted as threatening or improper. Moreover, there is concern that strict intent requirements in brandishing statutes might make that crime entirely duplicative of assault and prevent law enforcement from addressing potentially problematic gun displays. Brandishing was only statutorily defined in Michigan in 2015, and the previous common law rule did not require proof of specific intent to harm another individual. New Mexico also added a specific intent requirement to its brandishing statute in 2020, while increasing the sentencing enhancement for brandishing. Both the Michigan and New Mexico laws passed with broad bipartisan support. Although these states reached bipartisan consensus, the underlying motivation for requiring intent in brandishing laws is often unclear.  Some legislators may view broad brandishing statutes as incompatible with the open carrying of firearms in public, while others may be concerned about discriminatory enforcement.  

MacIntosh, which will proceed before the district court after the denial of Clous’s motion to dismiss, represents a novel fact pattern that may become more common in an increasingly virtual world. It also highlights how firearms are more likely, today, to communicate a political or social message on their own. Even when a firearm’s capability for imminent harm is removed, it can still have profound communicative power especially in the context of Second Amendment discussions. The display of a firearm in a virtual setting is largely uncharted legal territory. When a state criminalizes brandishing, what problem is it seeking to address? Is the state merely concerned with the threat of imminent violence, or also with the message that a firearm display might convey? MacIntosh potentially leaves the door open for federal constitutional law to address the latter issue.