U.S. Appeals Court hears arguments in gun case

Oct. 22—CINCINNATI — The U.S. Court of Appeals for the Sixth Circuit in Cincinnati will decide in the coming days whether or not a Grand Traverse County case involving a commissioner showing a semi-automatic rifle during a meeting will be dismissed, or move forward.

Traverse City attorney Blake Ringsmuth, who represents Patricia "Keli" MacIntosh, argued that Grand Traverse Commissioner Ron Clous' actions were both chilling and retaliatory when he grabbed the rifle and held it across his chest during a livestreamed county board meeting.

Clous' attorney, Marcelyn A. Stepanski of the Farmington Hills-based Rosati Schultz Joppich & Amtsbuechler law firm, argued that Clous was merely making a statement that he supports gun rights.

The U.S. Court of Appeals for the Sixth Circuit in Cincinnati on Thursday heard arguments from Stepanski and Ringsmuth, who filed a lawsuit on behalf of MacIntosh in April 2021 in U.S. District Court, Western District of Michigan, Southern Division. The lawsuit names Clous and Grand Traverse County.

Thursday's three-member panel was made up of Chief Judge Jeffrey S. Sutton, Judge Kathy Jane Branstetter Stranch, and Judge Stephanie Dawkins Davis.

Their decision will likely come within a month, though there is no deadline, Ringsmuth said. After the hearing he was hopeful that the case would move forward.

"I am very pleased that the court was alarmed at the use of a deadly weapon as part of public debate," Ringsmuth said.

Stepanski did not return a call for comment.

Clous and the county sought to have the lawsuit dismissed. Those motions were denied in December, after which Clous' attorney filed the appeal.

The lawsuit contends that Clous holding the rifle across his chest had a chilling effect on MacIntosh's speech and that she was threatened with future harm if she continued to speak out. Ringsmuth argued that point during the appeal.

"When you bring out a gun when you're not at a gun rally I think there is a very reasonable and logical inference that there is a threat in the air," Ringsmuth said. "That is, if you keep this up then who knows what's going to happen to you."

The incident in question took place Jan. 20 — two weeks after the Jan. 6 insurrection at the Capitol Building in Washington, D.C. — while MacIntosh was giving public comment. She asked commissioners to denounce the Proud Boys extremist group, given its involvement in the insurrection. Proud Boys members attended a county board meeting in early 2020 to support a Second Amendment sanctuary resolution, which was adopted by the board at that meeting.

While MacIntosh was speaking, Clous briefly disappeared before coming back into view, displaying the weapon on screen for about five seconds.

MacIntosh spoke after community activist Kate Dahlstrom, who sent an email to all commissioners asking them to confirm they are not members of the Proud Boys or any other hate group. Dahlstrom said she got just one reply.

Board Chair Rob Hentschel took a "brief pause" after Dahlstrom's comments to say he didn't like the "insinuation of racism" she was making. Commissioner Bryce Hundley then asked Hentschel if it was appropriate to respond to public comment. Hentschel can also be seen laughing when Clous displays the gun.

Stepanski maintained Thursday that Clous holding the gun was a non-verbal statement of his support of gun rights that was within his First Amendment rights.

"Granted, his opinion is unpopular and that's why he's not running again," Stepanski said. "The remedy is at the election box and it worked."

Clous will finish his fourth term at the end of this year after opting not to run.

There was no imminent threat, just symbolic speech, Stepanski said, claiming that Clous "chuckled to himself in jest."

Sutton questioned why Clous got the gun, asking if he thought he was clever in figuring out a way to disagree with MacIntosh without using his mouth. Sutton said Clous' actions were a clear signal to MacIntosh to stop talking, that it was clearly suppression of speech.

"Government officials picking up AK-47s is a signal to stop talking," Sutton said.

Stranch said MacIntosh was asking the board to make a public statement to the community that it does not accept the behavior of violent groups. She disagreed with the assertion that Clous was smiling.

"I've looked at that video a lot of times and the facial expressions do not seem to be saying to me 'it's a joke,'" Stranch said. "It seems to me that it is a smirk about her request."

After the incident, MacIntosh said she was harassed, intimidated and threatened by various unknown people and became fearful for her life. She had her phone number changed and has not been to another county meeting.

She filed a report with the Michigan State Police that was reviewed by Michigan Attorney General Dana Nessel, who opted not to file charges against Clous because there was not enough evidence to prove malicious intent. In a press release Nessel said she found his actions "reprehensible and irresponsible, but not illegal."

The incident made international headlines while closer to home more than 1,500 residents signed a letter asking for both Clous and Hentschel to resign. In five hours of public comment at the Jan. 28 commission meeting, the majority of those commenting asked for their resignations, or at the very least, an apology.

Neither came. A resolution of censure brought forward later by Commissioner Darryl V. Nelson was voted down in a 3-3 split. Hentschel also wrote a resolution of redress, calling the action well-intentioned but inappropriate, which was not discussed or voted on.