Andrew Hess v. Oakland Cnty., Mich.

── Andrew Hess v. Oakland Cnty., Mich. ── Court: Court of Appeals for the Sixth Circuit Date: May 05, 2026 Category: General RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 26a0131p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ ANDREW HESS, │ Plaintiff-Appellant, │ │ v. > No. 25-1784 │ │ OAKLAND COUNTY, MICHIGAN; KAREN MCDONALD, │ Oakland County Prosecutor, Oakland County, │ Michigan; MICHAEL J. BOUCHARD, Oakland County │ Sheriff, Oakland County, Michigan; MATTHEW │ PESCHKE, Sergeant, Oakland County Sheriff’s Office, │ Oakland County, Michigan, │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:25-cv-10665—Gershwin A. Drain, District Judge. Argued: March 19, 2026 Decided and Filed: May 5, 2026 Before: BOGGS, READLER, and DAVIS, Circuit Judges. _________________ COUNSEL ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellant. Zachary C. Larsen, CLARK HILL PLC, Lansing, Michigan, for Appellees. ON BRIEF: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellant. Robert N. Dare, CLARK HILL PLC, Lansing, Michigan, for Appellees.  No. 25-1784 Hess v. Oakland Cnty., Mich. Page 2 _________________ OPINION _________________ BOGGS, Circuit Judge. In December 2023, Andrew Hess attended an election recount conducted in an office at the Oakland County, Michigan, courthouse. He raised allegations of ballot-box tampering to the county’s director of elections, Joseph Rozell. Unsatisfied with Rozell’s assurances, Hess exited the recount room and entered the lobby of the courthouse, where he said “hang Joe for treason” to a fellow member of the public. Although Hess was allowed to remain at the recount, Oakland County prosecutors charged him with a felony months later under Michigan’s terrorist-threat statute based on that comment. Hess’s charge was dismissed after the Michigan Court of Appeals, in a different case, held the state’s terrorist-threat statute facially unconstitutional. Hess then filed a 42 U.S.C. § 1983 suit in the Eastern District of Michigan, including a claim that the attempted prosecution violated his First Amendment rights. The Michigan Supreme Court reversed the Court of Appeals, however, and state-court litigation continues to define the boundaries of the terrorist-threat statute’s constitutionality. That reversal revived the possibility that Oakland County could prosecute Hess under the terrorist-threat statute after all. Seeking to forestall this possibility, Hess requested one of the most dramatic remedies in a federal court’s arsenal: a preliminary injunction against a threatened criminal prosecution by a separate sovereign. The district court denied his motion. We agree with Hess that he is likely to succeed on the merits of his claim that his “hang Joe for treason” statement constituted protected speech, not a true threat. But because the