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Thursday, June 15, 2023

No Qualified Immunity for Commissioner who Displays Rifle During Speaker's Public Comment

A 6th Circuit Court of Appeals allowed a First Amendment retaliation case against a county commissioner to move forward where one of the commissioners displayed a high-powered rifle while a member of the public was speaking during public comment at a commission meeting. MacIntosh v. Clous.

At a county commission meeting held by Zoom, members of the public spoke during public comment to express concerns about the commission's prior invitation to the Proud Boys to attend a previous commission meeting. One speaker asked the commissioners to make a public statement condemning the Proud Boys' violent behavior. In response to her comments, a commission member briefly left the Zoom video area and returned with a high-powered rifle that he displayed on camera while she spoke.  

Following the meeting, the speaker sued the commissioner and the county, alleging that the commissioner unconstitutionally retaliated against her for exercising her First Amendment rights. She argued that the display of the rifle while she spoke during public comment made her feel fearful, intimidated, and physically threatened, and had deterred her from speaking at subsequent commission meetings. Other members of the public and officials also expressed concern and fear, and one commission member proposed a censure resolution that the commission voted down. 

The commissioner filed a motion to dismiss the lawsuit, claiming he had qualified immunity for his actions. The district court disagreed and denied his motion to dismiss and he appealed to the 6th Circuit Court of Appeals. 

On appeal, the commissioner argued the case should be dismissed because the speaker's allegations did not rise to the level of retaliation and that he had qualified immunity for his actions. The Court of Appeals disagreed with him, finding that the speaker had plausibly alleged that the commissioner violated her free speech rights. 

First, the Court held that the speaker's public comments at the commission meeting was a protected First Amendment activity. Second, the Court found that the commissioner's display of a firearm to the camera was a threat with a deadly weapon that could be interpreted as a message to "stop or else" the weapon would be used against her, and a threat to shoot someone because of protected speech is an adverse action required to show retaliation. The Court also noted that the commissioner's conduct could fall under the crime of "brandishing" a weapon. Third, the Court held that the display of the firearm by the commissioner was in direct response to the speaker's comments at the commission meeting, finding a connection between the two. Finally, the Court rejected the commissioner's qualified immunity argument finding that no reasonable official could believe that it was permissible to brandish a deadly weapon in response to a speaker's public comment that was asking the official to condemn violence. 

As a result, the Court of Appeals concluded that the district court properly denied the commissioner qualified immunity and sent the case back for further proceedings on the speaker's First Amendment claims.


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