First Amendment retaliation; “Adverse action”; Zilich v Longo; Whether defendant-county commissioner was expressing his own First Amendment rights by brandishing a rifle; Bloch v Ribar; Qualified immunity; Whether the constitutional right at issue was “clearly established”; Thaddeus-X v Blatter

[This appeal was from the WD-MI.] The court held that because plaintiff-MacIntosh plausibly alleged that defendant-county commissioner Clous violated her free-speech rights, and Sixth Circuit case law put Clous on clear notice his actions were unconstitutional, the district court did not err by denying his motion to dismiss, which was based on qualified immunity. Pursuant to Zilich, a “ threat to shoot a person because of her protected speech is an adverse action sufficient to support a First Amendment retaliation claim.” MacIntosh attended a Zoom meeting of the Grand Traverse County Commission 14 days after the events of 1/6/21 and expressed her concern about the Commission’s prior endorsement of the Proud Boys, a designated extremist hate group. She suggested the commissioners release a statement condemning the group’s violent behavior. Clous’s response was to “produce[] a high-powered rifle and display[] it to MacIntosh and the viewing audience.” MacIntosh sued the County and Clous in his individual capacity. She alleged Clous “retaliated against her for exercising her rights under the First Amendment, and that the County had an unconstitutional policy or practice of” permitting this. On appeal, as to whether Clous was entitled to qualified immunity, the court held that MacIntosh plausibly alleged that Clous’s actions violated a clearly established constitutional right. It noted that whether an action was so severe as to deter an individual “of ordinary firmness” from exercising a constitutional right is a question of fact, and under the motion to dismiss standard, a plaintiff only needs to assert a “plausible” claim. The court explained that, in response to McIntosh’s protected speech, Clous responded “by displaying a high-powered firearm to the camera—a threat with a deadly weapon that MacIntosh interpreted as ‘a symbolic message to say “stop or else”’ he would use that weapon against her—and the Board Chairman laughed. That action was followed by late night, anonymous, phone calls threatening MacIntosh.” Based on the factual parallels to Zilich, “Clous was on notice that he was accountable for communicating a threat against a citizen who was exercising her right to speak in the public square.” The court also held that in light of Zilich and Thaddeus-X, the right was clearly established. “Zilich established that threatening gun violence to silence a political opponent constitutes unconstitutional adverse action.” And the conduct here of “brandishing a weapon was proscribed by our conclusion in Thaddeus-X that physical threats constitute adverse action—especially” given that MacIntosh was a “citizen exercising her right to speak during a public comment period at a Commission meeting[.]” Affirmed.