Judge Stephanie Davis, nominated by President Biden to the US Court of Appeals for the Sixth Circuit, cast the deciding vote to reject a county official’s claim that he was immune from lawsuit when he retaliated against a citizen, including pointedly displaying a high-powered rifle towards her, for expressing views against the Proud Boys that he disagreed with. The May 2023 decision was in MacIntosh v Clous. 

 

What is this Case About? 

 In March, 2020, the Traverse County Commission in Michigan invited members of the Proud Boys to a Commission meeting, where they spoke and were praised by several Commission members.  The Commission also passed a resolution endorsed by the Proud Boys to designate the county as a “Second Amendment Sanctuary.” This created controversy in the community, particularly as the Proud Boys continued to get involved in “political violence” in Michigan and across the country. 

 In January 2021, several weeks after the January 6 insurrection in which the Proud Boys were involved, several community members spoke against the Proud Boys on Zoom at a Commission meeting. One criticized the Commission for inviting them to speak at the earlier meeting and asked the members to disavow them. The chair “chastised” the speaker, defended the Proud Boys, and stated that her views were “not welcome” at the meeting. 

 The next public speaker, Patricia MacIntosh, also criticized the Proud Boys and the Commission’s support for them. She asked the Commission to make a public statement disavowing the behavior of the Proud Boys and “similar violent groups.” In what he later admitted was a response to MacIntosh, Commissioner Ron Clous promptly left the view of the Zoom camera, and “returned with a high-powered rifle that he displayed” towards MacIntosh and the public “with a smirk.” 

 MacIntosh maintains that Clous’s actions “made her feel fearful, intimidated, and physically threatened,” and deterred her from speaking at other public meetings. She also reported that “due to Clous’s actions,” she received several “threatening, anonymous communications late at night.” At a community meeting to address what happened, the “great majority” of speakers “expressed shock, fear and anger” at Clous’s actions. The local newspaper wrote an editorial calling Clous’s behavior “intimidating conduct designed to discourage MacIntosh from speaking freely.”  

 MacIntosh filed a federal lawsuit against Clous and the County. She charged Clous with retaliating against her in violation of the First Amendment. He tried to have the suit dismissed even before discovery, claiming that he was immune from the lawsuit as a public official as a matter of law. The district court denied the motion and he appealed to the Sixth Circuit. 

 

How did Judge Davis and the Sixth Circuit Rule and Why is it Important? 

  Judge Davis cast the deciding vote in a 2-1 decision that affirmed the lower court and rejected Clous’s effort to dismiss the suit against him as a matter of law. The case can now proceed against Clous and the County. 

 The majority opinion, written by Obama nominee Judge Jane Stranch, made clear that Clous and the dissent (by right-wing judge Jeffrey Sutton) were wrong in claiming that Clous was immune from suit as a matter of law. Quoting prior precedent, the majority explained that “no reasonable official could possibly believe that it was constitutionally permissible to retaliate against a political opponent” with “physical threats.” This was true, the majority went on, even when the defendant claims the threats were “jokes” and the “targeted person” was not physically in the same room when the threat occurred. Whether Clous’s actions were “severe enough” to damage MacIntosh’s rights, the majority explained, was a factual question to be resolved at a later stage. But “[v]irtually smirking and displaying a high-powered rifle at someone during a tension-filled public meeting,” the majority noted, “is pregnant with dangerous meaning,” and it would be improper to dismiss the case against Clous as a matter of law. 

 The Sixth Circuit’s decision is important because it allows MacIntosh’s case against Clous to proceed in an effort to hold him, as a public official, accountable for his conduct. It is also significant because it sends a clear message to other public officials that they cannot simply rely on their status as public officials to escape any liability for misconduct and that members of the public have a First Amendment right to speak at public meetings without threats and intimidation by the public officials they address. In addition, the ruling provides another illustration of the importance of promptly confirming fair-minded Biden nominees like Judge Davis to our federal courts.