Raymond McGovern v. Christopher Brown

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 26, 2018 Decided June 1, 2018

No. 17-7073

RAYMOND MCGOVERN,

APPELLANT

v.

CHRISTOPHER BROWN, BADGE NO. 018, IN HIS INDIVIDUAL

AND OFFICIAL CAPACITIES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00215)

Mara E. Verheyden-Hilliard argued the cause for appellant.

With her on the briefs was Carl Messineo.

Nicholas S. McConnell argued the cause for appellees. With

him on the brief was James N. Markels.

Before: GRIFFITH, Circuit Judge, and EDWARDS and

RANDOLPH, Senior Circuit Judges.

Opinion of the Court filed by Senior Circuit Judge

RANDOLPH.

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RANDOLPH, Senior Circuit Judge: In the winter of 2011,

Secretary of State Hillary Clinton delivered a speech at George

Washington University. A ticket was needed to attend the event.

Raymond McGovern was in the audience. As Secretary Clinton

began her speech, university police officers removed McGovern

from the auditorium. Three years later, McGovern brought this

lawsuit against GW and these officers. His complaint sounded

in two counts: false arrest and excessive force. The district court

granted summary judgment in favor of the defendants.

McGovern v. George Washington University, 245 F. Supp. 3d

167 (D.D.C. 2017).

Secretary Clinton was well received when she took the

stage at GW. All stood, including McGovern, who had taken a

seat near the middle of a row in the center of the auditorium.

McGovern removed his sport coat and shirt to reveal his

undershirt with its message proclaiming “Veterans for Peace.”

As the applause for Secretary Clinton subsided and the rest of

the audience took their seats in anticipation of her speech,

McGovern remained standing and turned his back to the stage,

blocking the view of those sitting behind him, displaying his

T-shirt message to the press at the back of auditorium.

Captain Glaubach, a plain-clothed GW special police

officer who wore a badge attached to a neck lanyard, walked

down the aisle and stood facing McGovern six to eight feet

away. Another GW police officer in uniform, Corporal Brown,

slid down the row of seats toward McGovern, approaching him

from the rear. Brown put his hand on McGovern’s right arm

and asked him twice in a normal speaking voice, “Sir, would

you please come with me?”

Cameras of CNN, PBS, C-SPAN, and the university

newspaper, “The Hatchet,” recorded this scene and much of

what followed. Despite the proximity of the officers to him,

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McGovern continued to stand staring at the back of the

auditorium, exhibiting no affect. He did not turn or react in any

way to Corporal Brown’s hand on his arm. He responded

neither with word nor action to Corporal Brown’s twice repeated

request to come with him.

Corporal Brown then took McGovern by the arm.

McGovern stumbled, but followed Corporal Brown onto the

aisle where Captain Glaubach was standing. McGovern resisted

the officers as they escorted him out of the auditorium. As he

exited, he shouted “Who are you?” and “This is America! This

is America!” Outside the auditorium (not recorded), the officers

handcuffed McGovern and placed him under arrest. A third GW

police officer – Officer Barton – took McGovern to a substation

of the Metropolitan Police Department where he was processed

for disorderly conduct in violation of D.C. Code § 22-1321(b).

McGovern’s action for damages invoked 42 U.S.C. § 1983

and alleged that the officers and George Washington University

violated his constitutional rights to freedom of speech and

freedom from unreasonable seizures. An element of § 1983 is

that the defendants acted under “color of any

statute . . . of . . . the District of Columbia.” The element was

satisfied: the District of Columbia commissioned Captain

Glaubach, Corporal Brown, and Officer Barton as special police

officers, with the power to arrest those who violate the law. See

McGovern, 245 F. Supp. 3d at 174, 180–82.

The district court, Chief Judge Howell, granted summary

judgment in favor of the defendants. McGovern, 245 F. Supp.

3d at 171. As will appear, we find Chief Judge Howell’s

opinion comprehensive and persuasive.

In the district court, McGovern conceded that because

George Washington University was a private institution, he did

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not have a right to freedom of speech during this event. Id. at

191; cf. HENRY J. FRIENDLY, THE DARTMOUTH COLLEGE CASE

AND THE PUBLIC-PRIVATE PENUMBRA (1968); Henry J. Friendly,

The Public-Private Penumbra—Fourteen Years Later, 130 U.

Pa. L. Rev. 1289 (1982). McGovern has limited this appeal to

the questions whether officers Glaubach, Brown, and Barton had

probable cause to arrest him and whether Glaubach and Brown

used excessive force.

We begin with McGovern’s false arrest claim. The

constitutionality of an arrest turns on whether “at the moment

the arrest was made, the officers had probable cause to make

it . . ..” Beck v. Ohio, 379 U.S. 89, 91 (1964). It is enough that

probable cause exists to arrest for any crime, not necessarily for

the crime the officers had in mind at the time of the arrest.

Devenpeck v. Alford, 543 U.S. 146, 153 (2004). As we held in

United States v. Prandy-Binett, 995 F.2d 1069, 1073–74 (D.C.

Cir. 1993): “It is simply not the law that officers must be aware

of the specific crime an individual is likely committing. . . . It is

enough that they have probable cause to believe the defendant

has committed one or the other of several offenses, even though

they cannot be sure which one. The police may arrest an armed

individual running from a store in the dead of night while the

burglar alarm is sounding, even though they cannot be certain

whether the suspected crime is attempted burglary, burglary,

attempted robbery, robbery or unlawful possession of a firearm.”

The special police officers argue that they had probable

cause to arrest McGovern not only for disorderly conduct under

D.C. Code § 22-1321, but also for unlawful entry, D.C. Code

§ 22-3302(a)(1), and assaulting a police officer, D.C. Code

§ 22-405(b). Because probable cause existed to arrest

McGovern for unlawful entry, we follow the district court and

discuss only why there was probable cause to arrest McGovern

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for violating § 22-3302(a)(1). See McGovern, 245 F. Supp. 3d

at 185–87.

An individual may commit a violation of the District of

Columbia’s unlawful entry statute – a misdemeanor – in two

ways: the individual may enter the property “against the will of

the lawful occupant”; or the individual, “without lawful

authority to remain therein or thereon,” may “refuse to quit the

[property] on the demand of the lawful occupant.” D.C. Code

§ 22-3302(a)(1); District of Columbia v. Murphy, 631 A.2d 34,

37 (D.C. 1993); see also New York New York, LLC v. NLRB, 313

F.3d 585, 589 (D.C. Cir. 2002). The district court concluded

that probable cause existed to arrest McGovern for violating this

statute because the officers, by “express or implied means,”

made clear to McGovern that he was no longer welcome in the

auditorium but McGovern refused to leave. McGovern, 245 F.

Supp. 3d at 185 (quoting Ortberg v. United States, 81 A.3d 303,

308 (D.C. 2013)).

McGovern objects to the “implied” portion of the district

court’s quotation of Ortberg. As he sees it, “implied” notice

suffices only when the case deals with a person’s initial entry

onto property. For instance, a barbed wire fence on a stone wall

around a meadow would “imply” do not enter, as would a sign

on the fence saying “Trespassers W,” broken off at the “W.”

See A.A. MILNE, WINNIE-THE-POOH ch. 3 (1926). But

McGovern says that when persons already on the property with

permission act in a way inconsistent with the owner’s

conditional consent to their entry, the order for them to leave

must be “express,” not “implied.”

We do not decide if McGovern is right about this. Even on

his terms, his argument fails. It fails because the officers had

probable cause to believe they had issued a sufficient demand

for McGovern to leave and that he refused their demand.

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McGovern “was acting in a manner different from every other

person in the auditorium,” and the officers had cause to believe

he was disrupting the event. McGovern, 245 F. Supp. 3d at 187.

The officers also had good reason to believe that McGovern

knew of their presence and their apparent authority: they were

close to him; one was wearing a badge, the other was in

uniform. And they could reasonably believe that McGovern

knew why they were confronting him – namely, to remove him

from the auditorium. One of the officers placed his hand on

McGovern’s arm. The officer’s statement, twice repeated, was

framed in polite terms – “Sir, would you please come with me?”

This did not render the statement ambiguous or any less

demanding than if the officer had stated, “Get out of here.” If

McGovern had been prosecuted, perhaps he could have

defended on the basis that the officers did not make a sufficient

demand to trigger a violation of § 22-3302(a). But the question

here is not whether McGovern violated that law. The question,

which we have just answered, is whether the officers had

probable cause to believe that he was violating the law.

Remaining is McGovern’s claim of excessive force. He

offers a fanciful description of what happened. Corporal Brown

snuck up on him and, without identifying himself, yanked him

along the row of seats to the aisle. McGovern tried to catch his

balance, but Captain Glaubach joined Brown and “brutalized”

him, “implement[ing] pain measures” and “contorting him into

a painful headlock.” Brief of Appellant at 53. As they neared

the auditorium exit, the officers “intentionally/gratuitously

rammed McGovern into a door.” Brief of Appellant at 54.

McGovern’s “version of events is so utterly discredited by

the record that no reasonable jury could have believed him.”

Scott v. Harris, 550 U.S. 372, 380 (2007). The video recording

shows that Corporal Brown calmly approached McGovern, put

his hand on McGovern’s arm, and twice politely asked

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McGovern to come with him. Only after McGovern ignored

Brown did the officer hold McGovern’s arm to force him to

follow. McGovern briefly stumbled as he slid through the seats

toward the aisle. At this point, McGovern began pushing the

officers to evade their control. There was a bit of grappling until

the officers gained control and placed him under arrest.

No one who watched the recording, and certainly no

reasonable juror, could possibly credit McGovern’s version of

the events. Taking the facts “in the light depicted by the

videotape,” id. at 381, the use of force was “not so excessive

that no reasonable officer could have believed in the lawfulness

of his actions,” Scott v. District of Columbia, 101 F.3d 748, 759

(D.C. Cir. 1996). This case is a far cry from those in which we

have reversed summary judgment on excessive force claims. Cf.

Johnson v. District of Columbia, 528 F.3d 969, 974–75 (D.C.

Cir. 2008) (officer repeatedly kicked subdued subject in the

groin); Harris v. U.S. Dep’t of Veterans Affairs, 776 F.3d 907,

914–15 (D.C. Cir. 2015) (officer struck subject in the chest,

fractured his ribs and caused permanent nerve damage).

Affirmed.