TRAVERSE CITY — An attorney representing Grand Traverse County Commissioner Ron Clous contends that when Clous was asked to state his position on the far-right Proud Boys group, he did.
Clous stood up from his seat at the livestreamed county board meeting he attended from home on Jan. 20, grabbed a semi-automatic rifle, sat back down and held the weapon across his chest for a few seconds.
Clous’ attorney, Andrew J. Brege, asserts that Clous had a right to exercise his First Amendment rights, according to a transcript of a recent federal court hearing obtained by the Record-Eagle.
A lawsuit filed by Patricia “Keli” MacIntosh claims that Clous’ actions violated her free speech rights, coming as they did while she gave public comment asking the county board to denounce the Proud Boys. She seeks punitive damages of an unspecified amount, as well as attorney fees, court costs and expenses.
Clous’ actions also have a chilling effect on others who now may be afraid to exercise their free speech rights during meetings for fear of retaliation, the lawsuit claims.
“I don’t want the Court to interpret my defense of my client as me thinking that what he did ... was a good idea,” Brege stated according to the transcript. “But that doesn’t mean ... that what he did was a constitutional violation.”
Magistrate Judge Phillip J. Green of the U.S. District Court, Western District of Michigan, recently denied motions to dismiss the case filed by Brege and by Gregory R. Grant of Traverse City, who represents the county, which is also named in the lawsuit.
When contacted this week Brege said he has not yet determined if he will file an appeal of Green’s order. He has 30 days from the Dec. 7 date of the order to file.
Brege declined to comment further on the case.
Grant, who represents the county, said he does not comment on pending litigation and also has not yet made a formal decision on whether to appeal.
One of the major questions in the case is whether Clous’ actions were threatening. His attorney claims they were not, while MacIntosh’s attorney Blake Ringsmuth contends they were.
“Flashing a weapon during a disagreement or heated exchange is threatening, period,” Ringsmuth said this week. “Essentially he brought a gun to a word fight and in this context there really is no doubt he was angry and wanted to her to stop.”
According to the hearing transcript, Green said he had looked at the meeting video many times and would not comment on it because his personal feelings would not be appropriate, but that it could be seen as having a chilling effect on a reasonable person.
Brege argued that the weapon appeared to be unloaded because the magazine is missing. If so, Clous is not displaying it in a threatening way, he told the judge.
Green countered that nobody suggested Clous was going to be able to shoot anybody through a Zoom video.
Brege told the judge there is no question that Clous “willfully and knowingly” retrieved the weapon and displayed it. “The question is whether or not it’s willfully and knowingly done with the intent to induce fear,” he said.
At the Jan. 20 meeting, MacIntosh asked county board members to denounce the Proud Boys in light of their involvement in the Jan. 6 attack at the U.S. Capitol Building in Washington, D.C. Members of the Proud Boys attended a county board meeting in 2020 to show their support for a resolution making Grand Traverse County a so-called Second Amendment sanctuary.
Green said the issue is not whether displaying a firearm violates the constitutional rights of an individual.
“I think the issue is whether it is clearly established that a government official cannot retaliate against a citizen for criticizing a government official,” Green said, according to court transcripts.
MacIntosh faced public backlash after saying she felt intimidated and threatened by Clous’ actions.
After receiving multiple threatening phone calls from people around the country, she changed her phone number and filed a complaint with the Michigan State Police.
Following the investigation the case was sent to Michigan Attorney General Dana Nessel’s office, which opted not to pursue criminal charges against Clous because there was not enough evidence to prove malicious intent.
The definition of “brandishing,” which the lawsuit uses to describe what Clous did, also came into question at the Dec. 7 hearing.
Brege contended that lacking a definition of the term in Michigan law, the state relies on the dictionary. Brege quoted the American Heritage Dictionary, which defines brandishing as “to wave or flourish menacingly.”
Green cited federal law, which says brandishing is “... to display all or part of a firearm, or otherwise make the presence of a firearm known to another person in order to intimidate that person ... “
The lawsuit states that Clous was acting in his capacity as an elected member of the board when he showed the weapon, while the defendants claim they have qualified immunity.
Qualified immunity generally grants government officials immunity from civil suits.
County Administrator Nate Alger said he is unable to comment on ongoing litigation, adding that the court’s denial of the motion to dismiss doesn’t necessarily signal the outcome of the case.
The Jan. 20 incident drew international attention and angered many county residents who called for Clous’ resignation and/or an apology. Neither came.
At a Feb. 3 county board meeting, commissioners voted 3-3 to not censure Clous for his actions, with Clous recusing himself. The Resolution of Censure was written by Commissioner Darryl V. Nelson, who said he saw it as a way for the county to move past the incident.
In her lawsuit MacIntosh claims that with the voting down of the censure, along with some commissioners’ comments during the Feb. 3 meeting that there was nothing wrong with what Clous did, the county has effectively adopted a policy or practice of allowing such conduct.
In his denials, Green said whether MacIntosh’s claims can be proved is another matter, but that the claims are sufficient enough for the case to move forward.
A video scheduling conference is set for Jan. 25.