Michigan Lawsuit Entangles First and Second Amendment Freedoms

Calvin Congden posted the above picture on Facebook in December, 2015. It was taken in front of the Christmas tree in his home. He’s a military veteran who has had extensive firearms training.

Notice the correct trigger finger placement. Notice the military medals and the American flag. He routinely volunteered as a Santa Clause for Hillsdale Foster Care children.

He had recently transferred from the Michigan Department of Corrections to the Michigan Department of Health and Human Services. His picture was used to denigrate him to fellow employees and he was later “constructively terminated” and he’s suing as a result.

From freep.com:

DETROIT — A man who says his career suffered after he posted a photo of himself wearing a Santa Claus costume and holding a semi-automatic rifle has cleared a key hurdle in a lawsuit against the state of Michigan.

Calvin Congden’s lawsuit can proceed on his First Amendment claim and other arguments. Federal Judge Mark Goldsmith released a decision Tuesday.

One of the defendants in Congden’s lawsuit is a manager in Michigan Health and Human Services, Allison Zinn. The lawsuit contends that Zinn discriminated against Congden after she viewed the facebook photo. She is said to have told Congden’s co-workers to beware of him because he was a veteran, owned firearms, and “looked crazy.”

From the lawsuit:

24. After learning of Defendant Zinn’s statements, on January 10, 2016 Plaintiff contacted his State Representative and informed her of the potential discrimination against him as a State employee.

25. The next day, January 11, 2016, Plaintiff met with Defendant HUDSON. Plaintiff told Defendant HUDSON about Defendant ZINN’s comments. Plaintiff strongly opposed Defendant ZINN’s discriminatory behavior and informed Defendant HUDSON that he was a disabled veteran.

26. Later that same day, Plaintiff also met with Defendant LYONS in her office. Plaintiff again opposed Defendant ZINN’s comments.

Congden was subject to a series of disciplinary actions, stating his performance was “unsatisfactory” and that he would be terminated. It is hard to know precisely the details of the he-said/she-said issues in the case. The part that strikes me as interesting is the intertwining of First and Second Amendment issues.

Those who want a disarmed public seek to de-legitimize the idea of being armed. The Second Amendment is a constitutional fact and there are legitimate reasons to be armed. Pictures of armed people are a strong defense of the Second Amendment. They also arguably constitute protected political speech. They make the point: I am armed, I am here, and I am not going away.

Congden states that he was and is a strong proponent of the Second Amendment. Using a picture of a person who is legitimately holding a constitutionally protected item, in his own home, to remove him from public employment, is a clear violation of his First Amendment rights used to attack his Second Amendment rights.

At least one judge, Mark Goldsmith, in the United States District Court in Michigan, understands this to be true. It’s a reason the lawsuit has been allowed to go forward. Other issues in the lawsuit include protections under the Americans with Disabilities Act, and other statutes.

Even a writer for the New York Times has recognized the symbolic potency of carrying arms as protected, political speech.

From the NYTs blog:

The paradoxical upshot: if you and I get into a heated dispute at the local watering hole, and I say something ambiguous about how you’d best be quiet while casually pulling back my jacket to reveal that I’m packing heat, there’s a solid chance I’ve just committed felony brandishing — but if I stand outside an event featuring the president of the United States with a loaded handgun and a sign invoking Thomas Jefferson’s injunction that the “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants,” I’m in the clear.

The population cannot be effectively disarmed without also destroying the First Amendment. Guns are too easily made, particularly if information on how to make them is allowed to be freely distributed using First Amendment freedoms. That right has been under attack by the U.S. government.

Cognomen’s case may be headed to the Supreme Court. They’ve been much less reticent about taking First Amendment cases than they have been about those involving the Second Amendment.

Guns are too popular and too useful to be demonized effectively, if people are allowed to show their support for being armed, to speak freely, to publish their views and argue the merits of their case.

It’s not just the Second Amendment that has protected the right to keep and bear arms in the United States. It’s the First Amendment as well.

Using government power to discriminate against an employee because he supports the Second Amendment is an abuse of power. Congden’s lawsuit may set a precedent.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

comments

  1. avatar Mark N. says:

    It is not just demonizing guns, but demonizing anyone with military service, ESPECIALLY “disabled veterans” who are PRESUMED to be suffering from PTSD and may just “go off” at any time. This certainly seems to be what Ms. Zinn was thinking. (One also infers that she is anti-gun as well.)

    1. avatar Mark Kelly's Diapered Drooling Ventriloquist's Dummy says:

      “Punitive Psychiatry” just like in Soviet Russia, “they” will remotely (without interviewing) diagnose him as “mentally ill” all “for the children” and society’s sake.

      btw: it appears Zinn’s Fascistbook page is locked down and that she removed her photo, probably too much 1st Amendment for her to handle.

    2. avatar Fuck your face dot com yeah! says:

      This is why I don’t post my firearms on FB and IG, even though I would like to. Can’t erase the internet, and the trend we have been seeing, who knows what will get your fired next year. Yeah you can fight it, in TX that will get you no where. Just understand when you post, the world sees it and there are some ignorant snowflakes out there that will happy report you to whoever will listen

  2. avatar Gordon says:

    Another example of the extent of leftist infiltration of high levels of all government institutions. They have control of most government departments at all levels, even in more freedom loving states. The infiltration is by intent and planning; control the bureaucracy, control the government functions.

    Be Prepared

    1. avatar Bloving says:

      To be clear, he transferred from the Department of Corrections (largely populated with conservative thinking law-and-order types) to Health and Human Services (largely populated with progressives dependent on Democrat-supported funding and votes).
      Not sure what sort of welcome he expected but bigotry is still bigotry.
      🤠

      1. avatar FedUp says:

        It’s not as much a matter of conservative vs progressive as it is a matter of humans vs evil.
        (but appearing conservative will make you a specific target for their evil)

        A lot of people don’t realize that most of the women working in MI-DHS are pure evil until they have direct experience with those vicious tyrants.

        But still, he should have looked before he leaped.

        (Hmm, I reworded my comment which wasn’t showing up, then when I post the replacement it shows up with a note that it’s awaiting moderation)

      2. avatar GS650G says:

        And apparently ran into the office anti gun witch. Might have been best not to post the armed santa picture onto facebook. Actually best not to post anything on facebook.

        1. avatar FedUp says:

          …ran into the office anti gun witch?
          Three times in a row?
          They’re all witches, and 99% of them are anti-gun.

          25. The next day, January 11, 2016, Plaintiff met with Defendant HUDSON. Plaintiff told Defendant HUDSON about Defendant ZINN’s comments. Plaintiff strongly opposed Defendant ZINN’s discriminatory behavior and informed Defendant HUDSON that he was a disabled veteran.

          26. Later that same day, Plaintiff also met with Defendant LYONS in her office. Plaintiff again opposed Defendant ZINN’s comments.

  3. avatar Tom W. says:

    Santa is going to win “bigly”….it’s like whack a mole with these anti gun types.

  4. avatar SurfGW says:

    He was an employee of a public agency which has an anti crime image to uphold. If the department decided to do nothing and some anti-gunner raised a stink, the department would lose funding. The decision to fire him is an easy one for any manager.
    Hope others learn from this and don’t post their guns on Facebook to get fired at work or make themselves targets of robbers.

    1. avatar Mark N. says:

      It should be renamed: “Face the Music Book”. It’s kind of like the Miranda warning: anything you post can and will be used against you.

      1. avatar Gator says:

        Why would he post that picture? Why is he on social media. Social media is for attention whoring women and teenagers. Seriously?

    2. avatar Rob From Ks. says:

      So guns are somehow omens of bad times that we should all, at the deepest level be ashamed of owning? I disagree with what you say on a few levels. Apperently its acceptable if this guy got fired for showing he owns a firearm in a picture? Should I put a hood on before I walk in a gun store lest someone on the street recognize me, and righteously spread word around town to make sure I am demonized for practising a constitutional right? Also an anti crime image to uphold? What crime did this man commit?

      1. avatar SurfGW says:

        Department of Health and Human Services hands out food stamps and housing subsidies and is often accused of enabling the mentally ill or providing housing for people who might be making an income from criminal activity and is therefore very concerned about its image. Most Section 8 housing does not allow firearms and HHS and HUD frown upon anything gun related and have policies in place that have stood court challenges.
        Bottom line: If you post something on “Face the music book” (good one), then fully expect your employer to use it against you if it violates their policy. I fully suspect that this guy only worked for HHS because he wanted to find a way to get fired for his guns and bring a lawsuit.

    3. avatar drunkEODguy says:

      I’m not one to post guns, or any other expensive commodities on social media for the latter reason you cited. At the same time though, you better not ever post your political activities or proclivities, or allow yourself to be seen in public at a rally supporting 2A agendas or politicians.

      You see the problem with this? Allow yourself to be typecast as an “other” or “outsider” and you will be. Put it out there and matter of fact and you eventually change the culture to accept it as a norm. You want proof of this then look no further than the LGBT and gay rights activism of the past several decades. Whatever way you feel about the subject, you cannot deny their success in culturally and politically normalizing homosexuality. I assure you they didn’t do it by staying low key and quietly sitting by themselves in a corner.

      1. avatar Geoff PR says:

        “You see the problem with this? Allow yourself to be typecast as an “other” or “outsider” and you will be.”

        You realize it’s a short step from being an ‘other or outsider’, mocked and ridiculed, to be considered a protected class, just like the gay community used to be, don’t you?

        I’m liking the idea of using the gay experience in America as a model for 2A rights.

        Especially when it shows the Leftists to be the ones who are bigoted and intolerant…

  5. avatar Krp says:

    There is another Civil War underway and only going to escalate. Those with economic power are already using that power to punish those of us claiming the rights guaranteed by the Bill of Rights and are doing so without fear of repercussion. That means inevitably that this will escalate. The courts are not helping us so we will use the only devices we have at our disposal. The days is coming!! Just keep piling on you SOBs

  6. avatar Chris T from KY says:

    I know there are atheists who say it is crazy to believe in Santa Claus. Perhaps this woman is an atheist’s who hates Santa Claus, and thinks people who dress up as Santa Claus are crazy as she stated.

    It might have been worse for her if he did a video singing religious Christmas songs, while holding his rifle. (Smile)

  7. avatar No one of consequence says:

    Facebook – the place you go to to concede your Miranda rights before you even did anything wrong.

    Seriously, folks – if you post it online, it isn’t private, and it can be misconstrued and used against you … no matter what “it” is.

  8. avatar Shawn says:

    Wonder how the judge is going to rule that the employer was was in the right. He will lose his court case because guns. Because every judge is anti gun. Nearly every judge wants full blown government gun confiscation.

  9. avatar Ralph says:

    Calvin Congden should not have taken a job with the bums at Health and Human Services. He should have kept his job in the prison system where he would be surrounded by a much better class of criminal.

  10. avatar ironicatbest says:

    Bad Santa

  11. avatar Red says:

    I am troubled by comments on here that states that you shouldn’t be seen at events advocating for the Second Amendment, etc. There is a famous quote about evil prevailing because good men do nothing. This definitely applies here. If you are unwilling to fight for your rights and put yourself in the good fight, then don’t cry when your rights are taken one by one from you.

    1. avatar FedUp says:

      If you’re afraid to exercise your rights because somebody might violate your rights if you do, then you’ve already given up your rights.

      1. avatar Mark says:

        I understand and support your sentiment, but .. our “freedom loving” *conservative” Supreme Court justices have recently affirmed that employers have the *freedom* to force employees into (rigged) arbitration, and they’ve *also* given employers the freedom to snoop into social media and fire at will. At this point in history, nothing *good* can come from social media postings , and lots of bad things are allowed and encouraged by our “freedom” loving *conservative* Supreme Court. Actions have consequences.

  12. avatar kap says:

    Ms Zinn should castigate MS-13 instead of disabled Vets with PTSD, hope she receives the harshest sentence they can pass on her and the state is forced too place her on the employment line!

  13. avatar ironicatbest says:

    I have a pistol and a knife on my beds head board. My cat is sleeping on them. That’s cool, I think. …. Just had to input, cause she’s cute laying their on a 1911

  14. avatar whoopie says:

    People need to realize that they are just one re-tweet or a Facebook ‘like’ from being fired and having their lives ruined. In this hostile SJW atmosphere smart folks should avoid social media like the plague. The world doesn’t need to share your interests. Create an email circle of trusted friends instead.

  15. avatar Alan says:

    On additional torture of the English language, we have in the above article “constructively terminated”. I’m given, re this, to pose the following question. In PLAIN ENGLISH, what the hell does that rubbish mean? What exactly was “constructed” here?

    1. avatar Big Bill says:

      Google really is your friend.
      If you hate Google, use another search engine.

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