Public comment during a public meeting is not required but is fairly common. It should be a time for just that, public comment, and not for a discussion or debate. Providing instruction for public commentors and public officials can be beneficial and may have avoided the following litigation in Michigan.
Patricia MacIntosh (“MacIntosh”) filed a complaint under 42 U.S.C. § 1983 for deprivation of her civil rights in the U.S. District Court. MacIntosh brought a 1st Amendment retaliation claim against Ron Clous, a Grand Traverse County Commissioner, and an unconstitutional policy or practice claim against Grand Traverse County. Defendants then filed motions to dismiss MacIntosh’s complaint, with Clous asserting a qualified immunity defense. 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.” The District Court denied both motions, and Clous timely appealed to the Sixth Circuit. The Sixth Circuit affirmed the District Court’s decision to deny Clous’ motion to dismiss, finding that qualified immunity did not apply.
On January 20, 2021, during the public comment period of a zoom meeting of the Grand Traverse County Commission, MacIntosh expressed her concern about the Commissioner’s prior invitation and endorsement of the Proud Boys, a designated extremist and hate group. During a prior Board meeting on March 4, 2020, the Grand Traverse County Commission welcomed and praised two members of the Proud Boys and passed a “Second Amendment Sanctuary” designation for the County.
During her comments, McIntosh spoke and made a request of the Commissioners to denounce the Proud Boys, since they were linked to the May 20, 2020 storming of Michigan’s Capitol with assault weapons to coerce the state government to change its COVID-19 policies; the October 20, 2020 plot to kill Governor Whitmer; and more recently the January 6, 2021 insurrection at the Capitol Building in Washington D.C. In response to McIntosh’s request, Clous left the Zoom frame and returned with an assault rifle that he displayed with a smirk. (The video of the meeting was made part of the court record.) Soon after, MacIntosh began receiving threating and anonymous communications late at night. Out of general concern for her safety, she made a police report. In a subsequent special meeting held concerning Clous’ actions, and in response to a request to censure Clous, for over 4 hours, 100 community members expressed their fear and anger at the chilling effect Clous’ behavior had on 1st Amendment protected speech. Even though 100 community members spoke, some were afraid to identify themselves out of fear of similar behavior. Nonetheless, the County refused to censure Clous.
Qualified immunity protects government officials if their conduct does not violate clearly established rights of which a reasonable person would have known. It requires a two-pronged analysis and in this case: 1) did Clous’ conduct violate a constitutional right; and 2) was the right clearly established, such that a reasonable official would understand his conduct violates that right? The burden to show Clous is not entitled to qualified immunity is not high at this stage of the proceeding. For that burden to be met, it only needs to be “plausible” that his conduct violated a clearly established constitutional right.
Under the first prong of the qualified immunity analysis, for MacIntosh to make out a 1st Amendment retaliation claim, she must show: 1) she engaged in 1st Amendment protected activity; 2) Clous’ display of his weapon is an “adverse action” that would “deter a person of ordinary firmness from continuing to engage in [MacIntosh’s] conduct;” and 3) there is a “causal connection” between the protected activity and the adverse action. The second element is the only one in dispute. Clous argues his display of his rifle was not an “adverse action’ that would deter a person of ordinary firmness from exercising her 1st Amendment rights.
In Thaddeus-X v. Blatter, the Sixth Circuit held government actions that are not unconstitutional on their face may nonetheless be constitutional torts if motivated in substantial part to punish an individual for his/her exercise of a constitutional right. Moreover, an action is adverse if it could “deter a person of ordinary firmness.” A deterrent effect on speech “need not be great to be actionable.”
The Sixth Circuit heavily relied upon the factual parallels between Zilich v. Longo, in which the court held the mayor was not entitled to qualified immunity after verbally threatening a pesky Councilman Zilich with a weapon, vandalizing his home, and sending anonymous threats to harass Zilich. Similar to the virtual nature of Zoom, Zilich was not physically present when the mayor threatened to take lethal action against him, but the court found the danger need not be imminent to be actionable.
The Sixth Circuit concluded Clous’ brandishing of his assault rifle was a threat with a deadly weapon to which MacIntosh interpreted as “stop or else” Clous would use the weapon. Clous had proper notice through Sixth Circuit case law that his action would be considered adverse in response to protected 1st Amendment speech by a private individual, as even acts that are normally permissible can be “adverse” when they deter speech and the person acting intended to intimidate their target. Rudd v. City of Norton Shores.
The court found that Clous’ conduct impacted the community in such a way that it supported a finding that “a person of ordinary firmness would be deterred or chilled from exercising their 1st Amendment right.” This impact was best demonstrated at later Commission meetings in which individuals refused to provide their names in fear of retaliation. Clous incorrectly argued his conduct was expressive and protected, because “an action taken in retaliation for the exercise of a constitutionally protected right is actionable even if the act would have been proper [in other circumstances].” Bloch v. Ribar. The court also concluded Clous’ right as an official to respond to criticism is limited, and Clous is not permitted to publicly respond with “intent of injuring and chilling [MacIntosh] from continuing to exercise her constitutional right,” a burden which MacIntosh successfully met.
The second prong of the qualified immunity analysis asks if a reasonable official would understand his conduct violates the constitutionally protected right. Mullins v. Cyranek. The court utilized the factual parallels in Zilich to determine no official of reasonable competence could disagree that Clous’ purported threat was an unconstitutional adverse action, as Clous responded with a request to denounce political violence with an assault rifle. Finally, MacIntosh’s status as a private individual exercising her right to speak during a public comment period situates her in the most protected category in determining whether an action is adverse. Rudd v. City of Norton Shores. Thus, MacIntosh’s allegations plausibly established that Clous is not entitled to qualified immunity because he was on notice that his conduct would violate 1st Amendment rights. Read the full case here.
Should you have any questions or would like further clarification on these matters, reach out to Diane A. Calta.
