Raymond McGovern v. Christopher Brown ( 2018 )

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.
2
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,
3
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
4
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
5
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.
6
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
7
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.