McGovern v. George Washington University , 245 F. Supp. 3d 167 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RAYMOND MCGOVERN,
Plaintiff,
Civil Action No. 14-215 (BAH)
v.
Chief Judge Beryl A. Howell
GEORGE WASHINGTON UNIVERSITY, et
al.,
Defendants.
MEMORANDUM OPINION
The plaintiff, Raymond McGovern, claims violations of his constitutional rights by the
defendants, George Washington University (“GW”), and three individuals employed by GW as
Special Police Officers (“SPOs”), Christopher Brown, Michael Glaubach, and Jamie Barton,
arising from the plaintiff’s arrest after he “engaged in a silent expression of dissent” during an
address by then-Secretary of State Hillary Clinton on GW’s property. See Compl. at 1–2; ¶¶ 1–
2, 28, ECF No. 1. The defendants have moved for summary judgment, see Defs.’ Mot. Summ. J.
(“Defs.’ Mot.”), ECF No. 42, and the plaintiff has moved for partial summary judgment, see Pl.’s
Mot. Summ. J. (“Pl.’s Mot.”), ECF No. 43, as well as to strike an exhibit submitted by the
defendants in support of their motion for summary judgment, see Pl.’s Mot. Strike, ECF No. 53.
In the plaintiff’s view, at the heart of this suit is the “conflict of interest in the use of Special
Police Officer . . . authority by private institutions,” since “SPOs are not subject to the same
accountability as are traditional public law enforcement,” even though authorized by the state to
exercise arrest power. Pl.’s Mem. P. & A. Opp. Defs.’ Mot. Summ. J. (“Pl.’s Opp’n”) at 1, ECF
No. 49. Yet, as explained below, even holding the individual defendants to the standards
applicable to government-employed police officers, the plaintiff in this case has not established a
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violation of his constitutional rights. Accordingly, the defendants’ motion for summary
judgment is granted, and the plaintiff’s motion for partial summary judgment is denied. In
addition, for the reasons set forth below, the plaintiff’s motion to strike is granted.
I. BACKGROUND
The plaintiff, who was seventy-one years old at the time of the underlying events, is “a
veteran Army officer who served as an analyst with the Central Intelligence Agency for 27
years,” writing for the President’s daily brief under two presidents and personally briefing Vice
President George H.W. Bush and other officials during the administration of President Ronald
Reagan. Plaintiff’s Statement of Material Facts (“Pl.’s SMF”) ¶¶ 1, 41, ECF No. 43-3. After his
retirement from government service, the plaintiff co-founded Veteran Intelligence Professionals
for Sanity “to expose that intelligence was being falsified by the U.S. government to justify war
on Iraq.” Compl. ¶ 7; see Defendants’ Statement of Material Facts (“Defs.’ SMF”) ¶ 8, ECF No.
42-3. According to the plaintiff, he possesses “anti-war political views.” Compl. ¶ 8.
On February 15, 2011, GW, a private university in Washington, D.C., hosted an address
on Internet freedom of speech by then-Secretary of State Hillary Clinton at its Jack Morton
Auditorium. Pl.’s SMF ¶¶ 2, 19–25; Defs.’ SMF ¶¶ 1, 19. Attendance at the event was limited
to ticketholders who had registered in advance via “an electronic invitation circulated by GW to
students, faculty and guests” and “State Department staff and the media.” Defs.’ SMF ¶¶ 14; see
Pl.’s SMF ¶ 21. While not among those to whom the invitation was circulated by GW, the
plaintiff knew a GW professor who facilitated the plaintiff’s registration. See Pl.’s SMF ¶ 22.
Prior to the event, the plaintiff “received an e-ticket via email from [GW] addressed to [the
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plaintiff’s email]” which stated that he was “registered to attend” the Clinton address and noted
that “[g]uests must be seated by 11:40 a.m.” Pl.’s SMF ¶ 23; Defs.’ SMF ¶ 17. 1
The day of the event, the plaintiff arrived at the auditorium, located in GW’s Media and
Public Affairs (“MPA”) building, and proceeded to check in and submit to screening through a
metal detector as required by the security measures in place for the Clinton address. Pl.’s SMF ¶
24; Defs.’ SMF ¶¶ 3, 19. Once admitted to the auditorium, he selected a seat located near the
middle of a row halfway between the front and the rear of the auditorium. See Pl.’s Mot., Ex. M,
ECF No. 43-17 (map of auditorium indicating the plaintiff’s approximation of the location of the
seat he selected); Pl.’s SMF ¶ 20; Defs.’ SMF ¶ 21. Several media outlets, including GW’s
campus newspaper, The Hatchet, as well as CNN and PBS, were positioned around the
auditorium to capture video footage of the event. See, e.g., Pl.’s SMF ¶ 32; Defs.’ SMF ¶ 26.
When Secretary Clinton took the stage, the members of the audience, including the
plaintiff, collectively stood and applauded. See Pl.’s SMF ¶ 26; Defs.’ SMF ¶ 22. When the
other members of the audience took their seats, the plaintiff remained standing and turned such
that his back was toward Secretary Clinton. See Pl.’s SMF ¶ 28; Defs.’ SMF ¶ 23. At that time,
the plaintiff’s “Veterans for Peace t-shirt” was visible, although he had passed through security
screening wearing a dress shirt and jacket. Pl.’s SMF ¶ 28; see Defs.’ Mot., Ex. 1, McGovern
Dep. 37:4–38:10, ECF No. 42-4. According to the plaintiff, the “prolonged applause” caused
him to recall the “adulation he observed of Soviet officials during his service for the U.S. in the
Soviet Union” in a “flashback,” and he “wanted to do a silent witness to disassociate [him]self
from the adulation.” Pl.’s SMF ¶ 27 (quoting Pl.’s Mot., Ex. A, McGovern Dep. 50:18–53:13,
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In their SMF, the defendants aver that the “invitation specifically stated that the Clinton Speech was a
presentation and a ‘seated event.’” Defs.’ SMF ¶ 17. While the defendants’ use of quotation marks suggests that
the phrase “seated event” appears somewhere on the invitation cited as support for the defendants’ averment, no
such phrase is used on that document. See Pl.’s Mot., Ex. 2, ECF No. 42-5.
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ECF. No. 43-5). While neither Secretary Clinton nor any member of the audience appeared to
acknowledge explicitly the plaintiff’s silent standing, the plaintiff was in the line of sight of
Secretary Clinton, some audience members, and media representatives capturing the event on
film. See generally Pl.’s Mot., Video Ex. A (“Hatchet Video”) (on file with the Court and
counsel for the plaintiff); Defs.’ Mot., Ex. 19 at 38–39, ECF No. 42-22.
The then-Chief of the GW Police Department (“GWPD”), Kevin Hay, was present in the
auditorium at this time. See Pl.’s SMF ¶ 33. Upon observing the plaintiff standing silently with
his back to Secretary Clinton after the rest of the audience was seated, Chief Hay left the
auditorium to alert two other GWPD officers, Corporal Christopher Brown and Captain Michael
Glaubach, who were present in the lobby of the MPA building. See id.; Defs.’ SMF ¶ 25.
Corporal Brown and Captain Glaubach then entered the auditorium and approached the plaintiff.
See Pl.’s SMF ¶ 35; Defs.’ SMF ¶ 27–28. Corporal Brown was dressed in a GWPD uniform,
while Captain Glaubach was dressed in a suit with a GWPD badge hanging from his neck. See
Hatchet Video 00:00–00:10. Although the officers aver that they entered the auditorium and
approached the plaintiff via the same route, see Defs.’ Resp. Pl.’s SMF, Ex. 23, Glaubach Dep.
67:12–17, ECF No. 48-3, the plaintiff avers that he saw only Captain Glaubach approaching
him, see Pl.’s SMF ¶¶ 35–38, and at that time “said, U[h]-oh, what’s going to happen next,” Pl.’s
Mot, Ex. A, McGovern Dep. 74:15–17.
Video footage capturing the events that followed shows that Captain Glaubach stood in
the aisle facing the plaintiff, while Corporal Brown stood in the row with the plaintiff, slightly
behind him and to his right. See Hatchet Video 00:00–00:10. Corporal Brown’s hand was
placed on the plaintiff’s right arm, and with his face turned toward the plaintiff’s right ear, the
officer spoke to the plaintiff. Id. at 00:00–00:05. The plaintiff, however, made no
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acknowledgement of Corporal Brown’s presence. Id. Corporal Brown avers that he said to the
plaintiff at least two times, in an unraised voice, “Sir, can you please come with me,” and “got no
response” from the plaintiff either time. Pl.’s Mot., Ex. E, Brown Dep. 107:8–108:13, 110:1–2,
ECF No. 43-9. 2 The plaintiff avers that during this period of time he neither saw nor heard
Corporal Brown, despite the officer’s physical proximity. Id., Ex. A, McGovern Dep. 66:11–15.
At that point, Corporal Brown took hold of and pulled on the plaintiff’s right forearm,
leading to a struggle involving all three men. See Hatchet Video 00:05–00:14. As Corporal
Brown pulled the plaintiff toward the aisle past the other audience members seated in row, the
plaintiff reached down and grabbed onto the arms of seats. Id. at 00:05–00:11. As the plaintiff
neared the aisle, Captain Glaubach placed his hands around the plaintiff’s head and neck, which
contact the plaintiff fought against, before grabbing the plaintiff’s arms, while Corporal Brown
used his full body to push the plaintiff, who continued to struggle against the officers’ physical
contact, toward the exit. Id. at 00:10–00:16. As they approached and passed through the exit,
the plaintiff shouted, “So this is America. This is America!,” then, “Who are you?,” then “I was
standing there quietly,” and then, “You’re breaking my arm!” Id. at 00:15–00:31. All three men
remained on their feet throughout these events. See id.
Outside the auditorium, in the MPA building lobby, the officers identified themselves to
the plaintiff and handcuffed him, using “two sets of handcuffs linked one to the other to provide
a longer restraining device.” Defs.’ SMF ¶ 36; see Pl.’s SMF ¶ 54. According to the defendants,
the plaintiff continued to resist the officers in the lobby prior to his being handcuffed. Defs.’
SMF ¶ 35. Captain Glaubach made the decision to arrest the plaintiff for the offense of
2
The Hatchet Video does not capture all of the time during which Corporal Brown appeared to be speaking
to the plaintiff: Corporal Brown placed his hand on the plaintiff only after first speaking to the plaintiff, see Defs.’
SMF ¶ 31; Pl.’s SMF ¶¶ 39–40, 47–48, while the Hatchet Video commences during the time that Corporal Brown’s
hand is on the plaintiff.
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disorderly conduct. Id. ¶ 37. Officer Jamie Barton, who had “arrived on the scene as the other
officers were escorting Mr. McGovern out of the MPA building and attempting to handcuff
him,” “assisted in the handcuffing and conducted a search of Mr. McGovern’s person.” Id. ¶ 38;
see Pl.’s SMF ¶ 56. According to the plaintiff, the handcuffs “bit into [his] wrists in a way that
caused them to bleed,” Pl.’s Opp’n, Ex. A, McGovern Dep. 72:6–9, ECF No. 49-4, and he
requested medical attention, id. 83:17–84:4 (“I asked could somebody get some gauze or
something.”). The GWPD officers called Emergency Medical Services, which provided medical
attention for bleeding caused by the handcuffs. Id.; see Defs.’ SMF ¶ 39. The plaintiff was then
taken by Officer Barton and officers of the District of Columbia Metropolitan Police Department
(“MPD”) to an MPD station, where Officer Barton assisted in processing the paperwork for the
plaintiff’s “arrest for disorderly conduct in violation of D.C. Code § 22-1321(b) using
information provided by Corporal Brown and Captain Glaubach.” Defs.’ SMF ¶¶ 40–41; see
Pl.’s SMF ¶ 56. 3
While Corporal Brown, Captain Glaubach, and Officer Barton are each employed by
GW, rather than a public police department, they have been commissioned by the District of
Columbia as Special Police Officers (“SPOs”) with the power to arrest persons who violate the
law. See Defs.’ SMF ¶¶ 4–7. The GWPD Oath of Office signed by Corporal Brown reflects that
GW’s SPOs “affirm” they “will enforce the laws of the District of Columbia and the policies of
George Washington University.” Pl.’s Mot, Ex. B, Oath of Office, ECF No. 43-6. At the time of
the Clinton address, those policies included GW’s “Demonstrations Policy” and “Disruption of
University Functions” policy. Defs.’ SMF ¶¶ 9–10; Pl.’s SMF ¶¶ 58–59; see Defs.’ Mot, Ex. 8,
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The plaintiff has explained that he was “held [at the police station] for a few hours” before being released,
and the case against him was “no papered,” i.e., formal charges were never filed by the prosecutor. See Compl. ¶¶
68, 70.
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Demonstrations Policy, ECF No. 42-11; id., Ex. 9, Disruption of University Functions, ECF No.
42-12.
While asserting that “[t]he University is committed to the protection of free speech,
freedom of assembly, and the right to lawful protest on the campus,” Demonstrations Policy at 2,
the Demonstrations Policy advises that “[d]emonstrators will be prohibited from attempting to
force the cancellation or interruption of any event sponsored by the University” and those “who
wish to enter a building must do so as members of the audience, and must give the speaker a
respectful hearing,” id. at 3. The Demonstrations Policy specifically notes that “[a]ll non-
students are obligated to the terms of this policy during participation in such activities” and
“[s]ince organizations and persons who are not part of the University community are not subject
to University discipline procedures, failure to comply with this policy may result in action under
terms of District of Columbia, Commonwealth of Virginia, and/or federal law, as appropriate.”
Id. at 3. The Disruption of University Functions policy prohibits “members of the university”
from, inter alia, “engag[ing] in conduct that obstructs teaching, research, or learning . . . [or]
disobey[ing] general regulations of the university.” Disruption of University Functions at 1. The
policy goes on to explain that “[e]xamples of disruptive conduct include . . . engaging in
demonstrations that exceed the bounds of free assembly or lawful advocacy” and defines
“member of the university” as “[a] person, group or organization, including visitors, having a
connection with the university, whether the connection is formal or informal, recognized or
unrecognized.” Id. at 2.
At the time of the Clinton address, GW also had adopted GWPD Standard Operating
Procedures (“SOPs”), which outlined the procedure for GWPD officers making arrests, as well
as a “Use of Force Matrix” that categorizes conduct a GWPD officer may encounter in the
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course of his duties, such as active and passive resistance, and authorizes the use of specific
types and amounts of force for each category. See Defs.’ SMF ¶¶ 12–13. In addition, prior to
the Clinton address, GW had circulated to GWPD officers training materials related to updates to
the District of Columbia’s disorderly conduct statute that went into effect on February 1, 2011.
See Pl.’s SMF ¶ 66. Those training materials included thirty-five pages of material produced by
the MPD for its officers’ use and three pages of “GWPD Policy Notes.” See Pl.’s Mot, Ex. T,
ECF No. 43-24. The GWPD Policy Notes were drafted by Captain Glaubach and approved by
Chief Hay. See Pl.’s SMF ¶¶ 67–69.
On February 13, 2014, the plaintiff filed a three-count complaint against GW, Captain
Glaubach, Corporal Brown, Jamie Barton, and then-Secretary of State John Kerry, alleging
violations of his constitutional rights. Compl. at 1–2, ECF No. 1. Specifically, the plaintiff
alleged the events described above, as well as subsequent actions to investigate and monitor the
plaintiff taken by the State Department, resulted in violations of 42 U.S.C. § 1983 and his First
and Fourth Amendment rights. Id. ¶¶ 88–107. The plaintiff and Secretary Kerry stipulated to
dismissal of the plaintiff’s claims against this defendant, resolving Count III of the Complaint.
See Stipulation of Dismissal as to Defendant John F. Kerry, ECF No. 33. Following nineteen
months of discovery, see Scheduling Order, dated June 4, 2014; Amended Scheduling Order,
dated Jan. 4, 2016, the defendants filed a motion for summary judgment as to all the plaintiff’s
remaining claims, see Defs.’ Mot., and the plaintiff filed a motion for partial summary judgment,
see Pl.’s Mot. In addition, the plaintiff filed a motion to strike a declaration submitted as an
exhibit in support of the defendants’ motion for summary judgment and preclude use of the
declarant as a witness in this matter. See Pl.’s Mot. Strike. These motions are now ripe for
consideration.
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II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the
burden of demonstrating the “absence of a genuine issue of material fact” in dispute, Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific
facts supported by materials in the record that would be admissible at trial and that could enable
a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477
U.S. 242, 256 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on
summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, a reasonable
jury could return a verdict for the nonmoving party” (internal quotation marks omitted)); see
also FED. R. CIV. P. 56(c), (e)(2)–(3). When parties file cross-motions for summary judgment,
each motion is viewed separately, in the light most favorable to the non-moving party, with the
court determining, for each side, whether the Rule 56 standard has been met. See McKenzie v.
Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982) (“The rule governing cross-motions for summary
judgment . . . is that neither party waives the right to a full trial on the merits by filing its own
motion; each side concedes that no material facts are at issue only for the purposes of its own
motion.”) (citing 10A Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 2720
(1973)); see also Fox v. Transam Leasing, Inc., 839 F.3d 1209, 1213 (10th Cir. 2016) (“Where,
as here, we are presented with cross-motions for summary judgment, we must view each motion
separately, in the light most favorable to the non-moving party, and draw all reasonable
inferences in that party’s favor.” (internal quotation marks omitted)); Pac. Indem. Co. v. Deming,
828 F.3d 19, 23 (1st Cir. 2016) (same).
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“Evaluating whether evidence offered at summary judgment is sufficient to send a case
to the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123
(D.C. Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve
genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed,
and all justifiable inferences are to be drawn in his favor,” id. at 1863 (quoting Liberty Lobby,
477 U.S. at 255 (alteration in original)). Courts must avoid making “credibility determinations
or weigh[ing] the evidence,” since “[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000) (internal quotation
marks omitted); see also Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 295–96 (D.C. Cir.
2015). In addition, for a factual dispute to be “genuine,” the nonmoving party must establish
more than “[t]he mere existence of a scintilla of evidence in support of [its] position,” Liberty
Lobby, 477 U.S. at 252, and cannot rely on “mere allegations” or conclusory statements, see
Equal Rights Ctr. v. Post Props, Inc., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011); Veitch v.
England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.
1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); accord FED. R. CIV. P. 56(e). If
“opposing parties tell two different stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Lash v. Lemke, 786 F.3d 1, 6 (D.C. Cir.
2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The Court is only required to
consider the materials explicitly cited by the parties, but may on its own accord consider “other
materials in the record.” FED. R. CIV. P. 56(c)(3).
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III. DISCUSSION
To succeed on a claim against a defendant under 42 U.S.C. § 1983, a plaintiff must show
that the defendant, while acting under color of law, deprived him of the “rights, privileges, or
immunities secured by the Constitution and the laws” of the United States. 42 U.S.C. § 1983.
Here, the plaintiff claims (1) in Count I, that he was falsely arrested “in the absence of probable
cause,” amounting to “an abridgment of his free speech rights,” in violation of the First and
Fourth Amendments, Compl. ¶ 93; and (2) in Count II, that the defendants engaged in “an
unreasonable seizure and use of force, and excessive use of force” in violation of the Fourth
Amendment, and “in retaliation for the fact that [the plaintiff] stood in silent dissent and silent
expression,” in violation of the First Amendment, Compl. ¶¶ 96, 98. The defendants have
moved for summary judgment on all claims against all defendants. See Defs.’ Mot. at 1. The
plaintiff moves for summary judgment only as to Count I and only as to GW, Corporal Brown,
and Captain Glaubach. See Pl.’s Mot. at 1.
The plaintiff has also moved to strike an exhibit submitted in support of the defendants’
motion for summary judgment. See Pl.’s Mot. Strike. Given that the resolution of the motion to
strike may affect the evidence to be considered in support of summary judgment, that motion
will be considered before the parties’ contrary assertions regarding their respective motions for
summary judgment.
A. The Plaintiff’s Motion to Strike
The plaintiff has moved to strike a previously undisclosed declaration by Elena Gillis,
Suppl. Defs.’ Mot. Summ. J., Ex. A, Declaration of Elena Gillis (“Gillis Decl.”), ECF No. 46-1,
originally submitted unsigned on March 18, 2016, see Defs.’ Mot., Ex. 18, ECF No. 42-21, in
support of the defendants’ motion for summary judgment. See Pl.’s Mot. Strike. In that
declaration, Gillis avers that she was a GW student in attendance at the Clinton address, seated
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between the plaintiff and the aisle where the officers eventually approached him. Gillis Decl. ¶¶
2, 4. She further avers that his conduct in standing during the address “was distracting and made
[her] uncomfortable”; that she “heard [an officer] talking to Mr. McGovern but Mr. McGovern
was not responding”; and that “Mr. McGovern struggled and tried not to go” when being
removed from the aisle where he was seated, “grabb[ing] an arm of a seat and tr[ying] to hold
on.” Id. ¶¶ 6–8. The defendants submitted the signed version of this declaration on March 22,
2016, reflecting that the declaration had been executed on March 21, 2016. See id.
The plaintiff asserts that the defendants failed to disclose this declaration to the plaintiff
as required under Federal Rule of Civil Procedure 26, and that the omission is not “substantially
justified” or “harmless” under Rule 37, warranting the striking of the declaration and preclusion
of the use of the declarant as a witness. Pl.’s Mot. Strike at 1–3. In the alternative, the plaintiff
argues that the declaration should be ignored because, while an unsigned copy was timely filed,
the signed version was four days late. Id. at 12–13. The defendants counter that they satisfied
their disclosure obligations under Rule 26 by identifying Gillis “as a person who [sic] the
Defendants might rely upon at the dispositive motion or trial phase.” Defs.’ Opp’n Pl.’s Mot.
Strike at 8, ECF No. 54. Regarding the plaintiff’s argument that the declaration was untimely
filed, the defendants assert that “Local Rule 5.4(b)(5) expressly authorizes” the filing of an
unsigned declaration with a motion for summary judgment where such filing is shortly thereafter
supplemented with an identical signed version. Id. at 14. While the plaintiff’s request that
sanctions be imposed is denied, the plaintiff’s contention that the declaration was untimely filed
is correct.
“[D]istrict courts have ‘broad discretion in structuring discovery.’” Hussain v.
Nicholson, 435 F.3d 359, 364 (D.C. Cir. 2006) (quoting Edmond v. U.S. Postal Serv. Gen.
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Counsel, 949 F.2d 415, 425 (D.C. Cir. 1991)); see also Galvin v. Eli Lilly & Co., 488 F.3d 1026,
1030 (D.C. Cir. 2007) (recognizing that district courts have broad discretion over discovery).
Consequently, “[t]he decision to grant or deny a motion to strike is vested in the trial judge’s
sound discretion.” Canady v. Erbe Elektromedizin GmbH, 384 F. Supp. 2d 176, 180 (D.D.C.
2005); see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145,
150 (D.C. Cir. 1996) (holding that the Circuit reviews a trial court’s determination of motion to
strike for abuse of discretion).
Under the Federal Rules of Civil Procedure, parties are required to provide to the
opposing party, without “awaiting a discovery request,” the contact information of “each
individual likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or defenses, unless the use
would be solely for impeachment,” in their initial disclosures. FED. R. CIV. P. 26(a)(1)(A). Rule
26 further requires a party to “supplement” any disclosure made under Rule 26(a) “if the party
learns that in some material respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.” FED. R. CIV. P. 26(e)(1). Generally, “[i]f a party
fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing, or at
trial.” FED. R. CIV. P. 37(c).
In the case at hand, the defendants did not breach their discovery obligations regarding
the use of Elena Gillis as a witness. While the defendants did not identify her by name in their
initial disclosures to the plaintiff on July 18, 2014, they specified that “[n]umerous George
Washington University students attended the February 15, 2011 event” and that “[a]s discovery
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progresses the parties may consider how and to what extent information identifying these
individuals may be disclosed” in light of restrictions on disclosure of student contact
information. Defs. Brown, Glaubach, Bartin, and GW’s Initial Disclosures at 3, ECF No. 31.
On March 19, 2015, nearly a year before discovery closed in the case, the defendants
supplemented that disclosure to identify Elena Gillis by name. See Pl.’s Mot. Strike, Exs. 2–3
ECF No. 53-2–53-3. Conceding that a party’s discovery obligations may be satisfied where
“subsequent disclosures in discovery have corrected the failure to disclose in initial dislcosures,”
Pl.’s Reply Supp. Mot. Strike at 4, ECF No. 55 (emphasis omitted) (discussing Kapche v.
Holder, 677 F.3d 454, 468 (D.C. Cir. 2012)), the plaintiff nonetheless asserts that the defendants
failed to satisfy Rule 26’s requirement that the subject of the information possessed by the
witnesses be disclosed, see id. Yet, the defendants explained that the GW students with
discoverable information were those that “attended the February 15, 2011 event,” indicating that
the “subject” of the information pertained to their observations as attendees. Rule 26 requires
only that a party “indicat[e] briefly the general topics on which such persons have information”
and is intended “not [to] be burdensome.” See Fed. R. Civ. P. 26(a)(1)(A) advisory committee’s
note to 1993 amendment. This requirement was fulfilled by the defendants’ indication that Elena
Gillis was present in the auditorium during the incident underlying the instant action.
The plaintiff is correct, however, that the declaration was not timely filed. Local Rule
5.4(b)(5) provides: “Electronically filing a document that contains a declaration, verification,
certificate, sworn statement, oath or affidavit certifies that the original signed document is in the
possession of the attorney or pro se party responsible for the filing and that it is available for
review upon request by a party or by the Court.” LCvR 5.4(b)(5). While the defendants suggest
the rule contemplates the filing of an unsigned declaration when no signed declaration exists, no
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reasonable reading of the rule supports their position. Instead, this rule merely contemplates that
when an unsigned declaration is electronically filed, the filing party is certifying that the original
signed declaration exists in the possession of counsel or the pro se party. Here, the defendants
concede that at the time of the filing of the unsigned declaration, their counsel did not have an
executed version of it in their possession. See Defs.’ Opp’n Pl.’s Mot. Strike at 14 (“In this case,
the declaration had been reviewed and approved for filing by the declarant but her signature had
not been secured as she was out of the country.”). Nor have the defendants at any point
requested leave of Court for any extension of time to file this declaration. Thus, the declaration
was untimely filed without leave of Court. Consequently, the plaintiff’s motion to strike is
granted to the extent it requests striking of the Declaration of Elena Gillis.
B. The Plaintiff’s Fourth Amendment False Arrest Claim
The plaintiff moves for partial summary judgment only on his false arrest claim in Count
I, and solely on the ground that no probable cause existed to support his arrest by the individual
defendants. See generally Pl.’s Mot.; Pl.’s Mem. With respect to the plaintiff’s Fourth
Amendment false arrest claim, the parties principally dispute the following legal issues: (1)
whether Corporal Brown and Captain Glaubach acted under color of state law when they
undertook to remove the plaintiff from the auditorium; (2) whether the individual defendants
may invoke the defense of qualified immunity and, if so, whether they are entitled to that
defense; (3) whether probable cause existed to arrest the plaintiff for disorderly conduct,
unlawful entry, or assault on a police officer; and (4) whether, assuming a constitutional
violation occurred, GW is liable. The parties’ contentions are addressed seriatim below.
15
1. Corporal Brown and Captain Glaubach Acted Under Color of
State Law When They Approached, Removed and Arrested the Plaintiff
Under U.S.C. § 1983, only deprivations of rights “committed by a person acting under
the color of state law” are actionable. West v. Atkins, 487 U.S. 42, 48 (1988). While the
defendants do not dispute that the GWPD officers acted under color of state law in handcuffing
and formally arresting the plaintiff, they contend that “Corporal Brown and Captain Glaubach
were not acting under color of state law in approaching Mr. McGovern and then escorting him
out of the Auditorium.” Defs.’ Mem. at 12–13. At this early point in their interaction with the
plaintiff, the defendants assert they “were focused solely on enforcing a ‘zero tolerance’ policy
for violation of the university’s Disruptions and Demonstrations Policies in approaching Mr.
McGovern about his behavior and then removing him from the Auditorium when he refused to
comply with their requests to leave.” Id. at 13. Noting that “[a] private property owner such as
the university has the right to ask any person without lawful authority to remain on the premises
to leave,” the defendants posit that “[a]cting to enforce that right does not implicate government
authority or official conduct under color of law,” notwithstanding Corporal Brown and Captain
Glaubach’s status as SPOs. Id.
In support of their position, the defendants rely upon out-of-Circuit authority holding that
where “Special Patrolm[e]n,” similar in status to SPOs, made “repeated requests that [the
plaintiff] leave the [defendant’s] property,” no state action was involved until “their subsequent
arrest of [the plaintiff], which was only possible because of the police powers granted to them.”
Kalfus v. N.Y. & Presby. Hosp., 706 F. Supp. 2d 458, 470 (S.D.N.Y. 2010); see Defs.’ Mem. at
13–14. The defendants also rely upon authority from the District of Columbia that distinguishes
between an SPO’s actions “as a private citizen on behalf of his private employer” and those
“authorized by his commission as a special policeman.” United States v. McDougald, 350 A.2d
16
375, 378 (D.C. 1976); see Defs.’ Mem. at 14. The plaintiff counters that under the applicable
law, “[i]t is irrelevant that Brown or Glaubach might have taken the same action had either acted
in a purely private capacity when, in fact, their actions were taken as special police officers.”
Pl.’s Opp’n at 11. In support of his position, the plaintiff cites Maniaci v. Georgetown
University, 510 F. Supp. 2d 50 (D.D.C. 2007), where the plaintiff was found to have adequately
pleaded state action by alleging that SPOs employed by a private university forcibly removed
him from the university’s property, id. at 67–69. See Pl.’s Opp’n at 9–10. The plaintiff is
correct.
The Supreme Court has explained, “[i]f an individual is possessed of state authority and
purports to act under that authority, his action is state action. It is irrelevant that he might have
taken the same action had he acted in a purely private capacity or that the particular action which
he took was not authorized by state law.” Griffin v. Maryland, 378 U.S. 130, 135 (1964). For
this reason, “the inquiry must be whether there is a sufficiently close nexus between the State
and the challenged action of the regulated entity so that the action of the latter may be fairly
treated as that of the state itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974).
Under District of Columbia law, “[t]he power of arrest . . . is the sole factor which distinguishes
the holder of a special police commission from a private citizen.” McDougald, 350 A.2d at 378.
Consequently, while SPOs are not possessed of state authority “in all their actions,” they “act as
a state agent or instrument when the challenge ‘involves the arrest of a suspect and actions
related thereto.’” Woodward & Lothrop v. Hillary, 598 A.2d 1142, 1146 (D.C. 1991) (emphasis
in original) (quoting Alston v. United States, 518 A.2d 439, 443 (D.C. 1986)). “[T]he required
nexus with the state is furnished not by the fact of the commission alone . . . but by the
convergence of the authority bestowed by commission and the officers’ actions.” Id. at 1145–46.
17
In the instant case, the action at issue is the SPOs’ conduct in approaching the plaintiff
and forcibly removing him from the auditorium where the Clinton address was taking place.
Plainly, that action was “related” to the plaintiff’s ultimate arrest for the offense of disorderly
conduct, which was itself plainly an exercise of the power conferred on the SPOs by their
commissions and therefore constitutes state action. See Hillary, 598 A.2d at 1146.
Even had the interaction between the plaintiff and the SPOs not culminated in a formal
arrest, the actions here would nevertheless constitute state action. Admitting the action at issue
was taken to enforce GW’s right to eject persons from its private property, the defendants make
the broad pronouncement that “[a]cting to enforce that right does not implicate government
authority or official conduct under color of law.” Defs.’ Mem. at 13. Yet, the defendants’
argument is fatally undermined by applicable case law. In Griffin v. Maryland, the Supreme
Court found state action where an employee of a private amusement park, deputized as a sheriff
under state law, ordered four African-Americans to leave the park in accordance with the park’s
policy of segregation and arrested them when they refused. See 378 U.S. at 132. In so holding,
the Court explained that the park employee, “in ordering the petitioners to leave the park and in
arresting and instituting prosecutions against them[,] purported to exercise the authority of a
deputy sheriff,” including by wearing a sheriff’s badge and identifying himself as such. Id. at
135. That the defendant “might have taken the same action had he acted in a purely private
capacity” was not dispositive of whether state action occurred. Id.
Similarly, District of Columbia law specifically cloaks with state authority actions, short
of formal arrest, taken to enforce private property rights. For example, District of Columbia law
makes it a misdemeanor for a person to refuse to leave private property upon the demand a
person lawfully in charge of the premises and “permits a person lawfully in charge of premises to
18
act through an agent, including the police,” to eject persons from her private property. Bauldock
v. Davco Food, Inc., 622 A.2d 28 (D.C. 1993). The D.C. Court of Appeals has explained that
SPOs, in particular, are “employed for one sole purpose, that of guarding from depredation the
property” of their private employers. McDougald, 350 A.2d at 378; see Franklin v. United
States, 271 A.2d 784, 785 (D.C. 1970) (“[SPOs] are commissioned for the special purpose of
protecting the property on the premises of the employer . . . .”). Consequently, while this case
presents no occasion to consider whether every action taken by an SPO to enforce his employer’s
private property rights would constitute state action, existing case law supports the conclusion
that the SPOs’ actions here in approaching the plaintiff and forcibly removing him from the
auditorium, leading to a formal arrest, were state action. 4
The D.C. Court of Appeals’ decision in McDougald supports this conclusion, contrary to
the defendants’ interpretation of the case. In McDougald, an SPO employed by Giant Food, Inc.,
advised a food clerk, who had witnessed an alleged theft from one of the employer’s stores, not
to speak to defense counsel unless the prosecutor was also present. 350 A.2d at 376. The Court
of Appeals concluded that the SPO’s action in so advising his fellow employee was not
“authorized by his commission as a special policeman,” which conferred the “power of arrest”
for the purpose of enabling him to “guard[] from depredation the property of those who paid him
for his services.” Id. at 378. Consequently, the SPO “was acting in his capacity as a
4
The defendants rely on Kalfus v. N.Y. & Presby. Hosp., 706 F. Supp. 2d 458 (S.D.N.Y. 2010), to support
their position that SPOs do not act under color of state law when taking action short of an arrest to protect their
employer’s private property, but the Kalfus decision considered First, not Fourth, Amendment rights. As is
explained below, under the applicable Supreme Court precedent, individuals possess no First Amendment rights on
private property, with limited exceptions. In Kalfus, the “Special Patrolman” approached the plaintiff while on his
employer’s private property, so the Court concluded “there was no state action on which [the plaintiff] may claim an
abridgement of his First Amendment rights.” Id. at 470. While perhaps a sounder articulation of the decisional
principle in the case would have emphasized the private nature of the property involved rather than the nature of the
Special Patrolman’s actions, regardless, the case did not present an occasion to consider whether a Fourth
Amendment false arrest claim would lie based on the Special Patrolman’s actions in approaching the plaintiff.
19
representative of a private corporation when he conveyed this policy to the employees under his
supervision.” Id. at 79.
McDougald considered the situation in which one employee advised another employee of
the policy of their mutual employer. In the instant matter, by contrast, Corporal Brown and
Captain Glaubach, as employees of GW, approached the plaintiff for the purpose of enforcing
their employer’s policy against a non-employee violating that policy. Moreover, the defendants
emphasize that in their interactions with the plaintiff these two officers were acting in accordance
with the GWPD’s Standard Operating Procedure 2.1.14, which outlines the escalating “practices
and procedures to be followed by GW security personnel in response to actions by a potential
arrestee,” Defs.’ Mem. at 12 (emphasis added), leaving no question that Corporal Brown and
Captain Glaubach acted within the scope of their power to arrest in approaching and removing
the plaintiff. Accordingly, the SPOs were acting under color of state law in approaching the
plaintiff and removing him from the auditorium. 5
2. Whether the Individual Defendants May Invoke the Defense of
Qualified Immunity Need Not Be Addressed
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Messerschmidt v. Millender, 565 U.S.
535, 546 (2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). In this way, the
defense “gives government officials breathing room to make reasonable but mistaken
judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the
5
This conclusion mitigates the concern that “[a] conflict of interest, even an institutional leaning,
exists for university police departments to misuse their commissioned authority to arrest to enforce mere university
policy,” Pl.’s Mem. at 2, because individuals acting under color of state law must adhere to the same standards
whether privately or publicly employed.
20
law.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 744 (2011)). In determining whether a
government official should be entitled to qualified immunity, the two pertinent questions are (1)
“whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a
constitutional right,” and (2) “whether the right at issue was ‘clearly established’ at the time of
the defendant’s alleged misconduct.” Pearson, 555 U.S. at 232 (quoting Saucier v. Katz, 533
U.S. 194, 201 (2001)).
In the instant matter, the parties hotly dispute whether the individual defendants may
invoke the defense of qualified immunity at all, given that they are not state actors for all
purposes. In determining whether qualified immunity applies to shield a defendant from liability
under § 1983, the Supreme Court has distinguished private employees performing state
functions, like the individual defendants in this case, from government employees, who are
presumptively entitled to the defense. Thus, in Richardson v. McKnight, 521 U.S. 399 (1997),
the Court considered whether private prison guards could invoke the defense, noting that “this
Court has . . . accorded immunity where a ‘tradition of immunity was so firmly rooted in the
common law and was supported by such strong policy reasons that Congress would have
specifically so provided had it wished to abolish the doctrine,’” id. at 403 (quoting Wyatt v. Cole,
504 U.S. 158, 164 (1992)) (internal quotation marks omitted). “[L]ook[ing] both to history and
to the purposes that underlie government employee immunity in order to find the answer,” id. at
404, the Court concluded the defense was not available to the private prison guards, id. at 401.
In doing so, the Court emphasized that “the most important special government immunity-
producing concern” is “unwarranted timidity,” finding that this concern “is less likely present, or
at least is not special, when a private company subject to competitive market pressures operates a
prison.” Id. at 409. The Court also recognized other goals of qualified immunity that should be
21
considered when determining whether that defense may be accorded to a particular defendant:
“ensur[ing] that talented candidates are not deterred by the threat of damages suits from entering
public service” and avoiding “distract[ing] . . . employees from their duties.” Id. at 411.
Although no party identifies authority binding on this Court that squarely addresses the
question presented here, both the plaintiff and the defendants contend that consideration of the
factors outlined in Richardson supports their respective position. See Pl.’s Mem. at 36–40;
Defs.’ Mem. P. & A. Opp’n Pl.’s Mot. Summ. J. (“Defs.’ Opp’n”) at 22–24, ECF No. 47; Pl.’s
Reply at 23–25. The plaintiff states he “is unaware of a ‘firmly rooted’ tradition of providing
immunity for the type of private actors in this case,” and, moreover, that the “purposes served by
recognizing qualified immunity for public police officers are not present where defendants are
privately employed security officers.” Pl.’s Mem. at 37. Specifically, the plaintiff asserts that
“unwarranted timidity” as a concern “is not present here . . . given [these officers’] primary
employment purpose to enforce highly restrictive internal private university policy” and that
“competitive financial or marketplace pressure are present, as they were in Richardson.” Id. at
38. The plaintiff also notes that as a private employer, GW offers insurance and benefits to its
employees that alleviate concerns that employees will be deterred from entering public service or
distracted from their duties by the potential of lawsuits. Id. at 39–40. The defendants counter
that “Richardson concerned privately employed prison guards, not SPOs.” Defs.’ Opp’n at 22.
They also assert that “[t]here is no evidence in the record that GW, as a private university, has
[market] pressures” of the variety found to militate against immunity in Richardson, and that
“[t]here is no . . . evidence here” that GW is free “from many civil service law restraints” and can
“offset any increased employee liability risk with higher pay or extra benefits.” Id. at 23.
22
To be sure, university-employed SPOs’ entitlement to the defense of qualified immunity
is a question of significant importance to the SPOs themselves, the universities who employ
them, and the public, but only to the extent those officers commit constitutional violations. As is
explained below, the SPOs in this case committed no constitutional violation, obviating the need
to resolve this issue here. See Pearson, 555 U.S. at 232 (explaining that to overcome the defense
of qualified immunity, a plaintiff must “make out a violation of a constitutional right” and show
that “the right at issue was ‘clearly established’ at the time of the defendant’s alleged
misconduct”). Consequently, whether, and under what circumstances, SPOs may invoke the
defense of qualified immunity remains an issue left to another case.
3. The Plaintiff’s Arrest Was Supported by Probable Cause
“Whether [an] arrest was constitutionally valid depends . . . upon 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). Consequently, at the core of the parties’ dispute over the appropriateness of summary
judgment on Count I is the question whether probable cause to believe the plaintiff committed
any crime existed at the time of the plaintiff’s arrest. The defendants assert that at the time of the
plaintiff’s arrest, probable cause existed for three separate crimes: disorderly conduct under D.C.
Code § 22-1321, unlawful entry under D.C. Code § 22-3302(a)(1), and assaulting a police officer
under D.C. Code § 22-405(b). See Defs.’ Mem. at 20–23; Defs.’ Reply at 14–15. The plaintiff
disagrees, contending that probable cause was lacking for each of these offenses. See Pl.’s Mem.
at 13–27. The defendants have the better of the argument.
An arrest is supported by probable cause if, at the time of the arrest, “the facts and
circumstances within [the officers’] knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man in believing that the petitioner had
23
committed or was committing an offense.” Beck, 379 U.S. at 91. Such a belief need not be
“correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983). Moreover,
probable cause does not “require the same type of specific evidence of each element of the
offense as would be needed to support a conviction,” Adams v. Williams, 407 U.S. 143, 149
(1972), although “the police cannot establish probable cause without at least some evidence
supporting the elements of a particular offense, including the requisite mental state,” Wesby v.
District of Columbia, 765 F.3d 13, 20 (D.C. Cir. 2014) (emphasis in original).
“To determine whether [an officer] had probable cause to believe that [a plaintiff was]
violating District of Columbia law, we look to District law to identify the elements of each of
those offenses.” Id. at 19. While the plaintiff in this case was arrested for the offense of
disorderly conduct under D.C. Code § 22-1321(b), that “need not be the criminal offense as to
which the known facts provide probable cause” because “an arresting officer’s state of mind . . .
is irrelevant to the existence of probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
Accordingly, if probable cause existed as to any crime, the plaintiff cannot establish his Fourth
Amendment false arrest claim.
The parties dispute the point in time at which an arrest took place, and, thus, they
disagree as to the universe of facts relevant to the analysis of whether probable cause existed.
The defendants argue that no arrest took place until the plaintiff “had been escorted out of the
Auditorium and into the MPA Building lobby,” Def.’s Mem. at 18, while the plaintiff maintains
that he was under arrest “[f]rom the moment [Corporal Brown] first put his hands on” the
plaintiff, Pl.’s Opp’n at 14.
The Fourth Amendment protects against all “seizures,” not only formal arrests. See Terry
v. Ohio, 392 U.S. 1, 16 (1968) (“It is quite plain that the Fourth Amendment governs ‘seizures’
24
of the person which do not eventuate in a trip to the station house and prosecution for crime—
‘arrests’ in traditional terminology.”). That amendment’s protections are implicated whenever
an “officer, by means of physical force or show of authority, has in some way restrained the
liberty of a citizen.” Id. at 19 n.16. Thus, while the plaintiff is correct that no formal arrest need
take place for an unconstitutional seizure to occur, he goes too far in asserting that he was seized
as soon as Corporal Brown laid hands on the plaintiff. The parties do not dispute, as the video
footage of the encounter confirms, that Corporal Brown’s hand rested on the plaintiff’s arm
during at least part of the time that he spoke to the plaintiff while both men were standing still in
the auditorium. See Hatchet Video 00:00–00:05; Defs.’ SMF ¶ 31; Pl.’s SMF ¶ 39, 48. In these
circumstances, Corporal Brown’s placing of his hand on the plaintiff can only reasonably be
understood not as a restraint on liberty but as an attempt to get the plaintiff’s attention. See, e.g.,
United States v. Burrell, 286 A.2d 845, 846 (no seizure under Terry and the Fourth Amendment
where an officer “merely touched appellee’s elbow, an action used as a normal means of
attracting a person’s attention” and “coupled this touching with the simultaneous request to
speak with appellee”). Only once Corporal Brown undertook to control the plaintiff’s
movements, using physical contact to remove the plaintiff from the auditorium, did a seizure
occur, triggering the Fourth Amendment’s protections.
Consequently, the next question is whether the officers’ seizing the plaintiff by removing
him from the auditorium was reasonable under the Fourth Amendment. A seizure less intrusive
than an arrest may be reasonable under the Fourth Amendment even in the absence of the
probable cause required for an officer to make an arrest. See Terry, 392 U.S. at 24.
Nevertheless, the moment at which the seizure here became an arrest need not be parsed because
25
probable cause existed to arrest the plaintiff for unlawful entry when the officers began removing
the plaintiff from the auditorium.
At the time of the events in question, District of Columbia law made it a misdemeanor for
a person, “without lawful authority, [to] enter, or attempt to enter, any private dwelling, building,
or other property, or part of such dwelling, building, or other property, against the will of the
lawful occupant or of the person lawfully in charge thereof” or to “refuse to quit the same on the
demand of the lawful occupant, or the person lawfully in charge thereof.” D.C. Code § 22-
3302(a). Under this law, “[t]he offense of unlawful entry includes . . . cases where a person who
has entered the permises with permission subsequently refuses to leave after being asked to do so
by someone lawfully in charge.” District of Columbia v. Murphy, 631 A.2d 34, 37 (D.C. 1993).
As the D.C. Circuit has explained, where an officer “personally ask[s] the [plaintiff] to leave and
the [plaintiff] . . . refuse[s],” that “refusal . . . supplie[s] the probable cause the officer[] need[s]
to make an arrest for unlawful entry.” Wesby, 765 F.3d at 24 (quoting Murphy, 631 A.2d at 38).
Moreover, to support a valid unlawful entry conviction, “the government need only prove that
the ‘will’ of a lawful occupant was objectively manifest through either express or implied means,
not that the will was subjectively understood by the defendant.” Ortberg v. United States, 81
A.3d 303, 308 (D.C. 2013) (footnotes omitted).
In the instant case, the defendants contend that “[p]robable cause to arrest Mr. McGovern
for unlawful entry arose” after he “ignored Corporal Brown’s requests” in the auditorium. Def.’s
Mem. at 22. 6 In urging that this contention be rejected, the plaintiff posits that “there must be a
6
The defendants also contend that the plaintiff “openly def[ied] the terms of the invitation he had accepted
when he stood during the speech,” Defs.’ Mem. at 22, arguing that the plaintiff “disregarded the condition GW
expressly included in the notice informing him that he had successfully registered to attend: ‘Guests must be seated
by 11:40 am,’” id. at 23. This dubious contention need not be considered at length in light of the Court’s conclusion
that probable cause for an unlawful entry arrest otherwise existed. Nevertheless, the defendants’ argument that the
plaintiff had notice of a policy against standing demonstrations at such events would be significantly stronger were
the defendants in the position of asserting that GW took the prudent step of advising the event’s attendees of any
26
demand, a directive from a person lawfully in charge” and that “directive must be specifically for
the person to ‘leave the property,’” asserting that “[n]either of these requirements are met by the
words uttered by Brown.” Pl.’s Mem. at 24. As additional support for his argument, the plaintiff
avers that he “did not even indicate awareness of Brown’s presence, much less that he heard
Brown’s words” and that “Brown did not . . . ensure the visibility of his uniform, though he
easily could have.” Id. at 26. The plaintiff also notes that Corporal Brown “to this date, does not
assert there was a violation of the unlawful entry . . . statute.” Id. at 24 (emphasis in original).
The plaintiff’s arguments are unavailing. As a threshold matter, it is irrelevant to the
probable cause inquiry whether an officer subjectively believed probable cause existed as to a
given criminal offense. See Devenpeck, 543 U.S. at 153 (“Our cases make clear that an arresting
officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of
probable cause.”). Accordingly, contrary to the plaintiff’s suggestion, Corporal Brown’s beliefs
as to the existence of probable cause for unlawful entry have no bearing on the question of the
constitutionality of the seizure at issue here. Nor does the probable cause analysis take into
account an arrestee’s state of mind in any way, and, thus, it is also irrelevant whether the plaintiff
was in fact aware of the officers’ presence or heard Corporal Brown’s words. Rather, the
probable cause analysis is undertaken from the perspective of the officer and asks whether he
could have reasonably believed that probable cause existed as to any crime.
In this case, no reasonable jury could find that the officers lacked probable cause to arrest
the plaintiff. As noted supra Part I, there is no genuine dispute that while standing near the
plaintiff, Corporal Brown placed his arm on the plaintiff and stated at least two times, without
such policy. See Pl.’s Opp’n at 23 (averring that the plaintiff “was never given notice of university policies”
pertaining to demonstrations and disruptions at university events).
27
raising his voice, “Sir, can you please come with me.” 7 In view of the clarity of these facts, the
plaintiff is relegated to arguing that these words do not “constitute[] a directive to leave the
premises.” Pl.’s Mem. at 26. The plaintiff strains to avoid the plain import of Corporal Brown’s
direction by pointing out specific words not used, stating that “on their face [those words] do not
reference leaving, do not reference the premises, do not reference the auditorium, and use
language that literally constitute an inquiry as to capability and, if treated generously, constitute a
mere request and not a directive or demand.” Pl.’s Opp’n at 4. Notwithstanding the plaintiff’s
suggestions to the contrary, under District of Columbia law, the will of the lawful occupant need
only be “objectively manifest” through “express or implied means,” Ortberg, 81 A.3d at 308.
Although the statute requires a “demand” before a person may be held liable for refusing to quit
another’s premises, such demand need not take any particular form, as long as a reasonable
person would understand that he was required to leave. Consequently, for the offense of
unlawful entry, the existence of probable cause turns on whether a reasonable person would
believe the plaintiff was refusing to quit the premises after being required to do so by a person
lawfully in charge. See Wesby, 765 F.3d at 24 (explaining in affirming denial of summary
judgment that “[h]ad the officers personally asked the Plaintiffs to leave and the Plaintiffs had
refused, such a refusal would have supplied the probable cause the officers needed to make an
arrest for unlawful entry” (internal quotation marks and alterations omitted)).
At the time they seized the plaintiff, Corporal Brown and Captain Glaubach knew that the
plaintiff was the only person standing, as opposed to sitting, in the auditorium; that Captain
7
The plaintiff’s position that he heard no words spoken by Corporal Brown does not create a factual dispute
as to whether Corporal Brown spoke to him, what was said, or in what volume. Instead, the plaintiff’s assertion may
explain why he failed to follow the officer’s instructions. In any event, the plaintiff presents no evidence
contradicting the defendants’ assertions, which, moreover, are corroborated in part by video footage of the events.
Cf. Murphy, 631 A.2d at 38–39 (denying summary judgment on false arrest claim where “the record does not
exclude the possibility that the police seized [the plaintiff] without knowing whether [any person] had asked him to
leave and without asking him to do so themselves”).
28
Glaubach, who was dressed in a suit and wearing a GWPD badge, could readily be seen by the
plaintiff; that Corporal Brown, who was dressed in a police uniform, had made physical contact
with the plaintiff and asked the plaintiff at least twice to “come with” him; and, as the plaintiff
himself admits, that the plaintiff had not acknowledged the officers’ presence in any way, in
spite of Corporal Brown’s making physical contact and speaking to the plaintiff. From these
facts, the officers could have reasonably believed that the plaintiff was aware that he was acting
in a manner different from every other person in the auditorium and, to avoid further disruption,
was being required to leave by persons with lawful authority to order him to do so; and was
refusing to comply with the officers’ lawful request, in violation of D.C. Code § 22-3302(a).
Thus, the officers had probable cause to arrest the plaintiff for unlawful entry at the time they
began removing him from the auditorium. 8
Nor was probable cause lost at any point after the officers undertook to remove the
plaintiff. The parties do not dispute, as the video footage reveals, that Corporal Brown expended
some effort in getting the plaintiff from where he was seated to the aisle, and that the plaintiff
reached down to grab the arms of seats he passed. See Hatchet Video 00:06–00:11; Defs.’ SMF
¶ 31–32; Pl.’s SMF ¶ 50. Although the plaintiff asserts that in that moment he may simply have
been trying to “get [his] balance” because he “was about to fall on . . . folks” seated between him
and the aisle, Pl.’s Mot., Ex. A, McGovern Dep. 68:12–18, the defendants allege he was actively
trying to resist the officers, see Defs.’ SMF ¶¶ 31–32. Even assuming the officers recognized the
plaintiff’s grabbing of the arms of seats as an attempt to maintain balance and not resistance,
however, it would not negate the probable cause for unlawful entry that already existed by that
8
Besides being irrelevant to the probable cause analysis, the plaintiff’s contention that he did not know he
was required to leave the auditorium at the time he was seized seems disingenuous in light of his averment that he
“said, U[h]-oh, what’s going to happen next,” upon seeing Captain Glaubach approaching him. Pl.’s Mot, Ex. A,
McGovern Dep. 74:15–17.
29
time. The plaintiff also emphasizes that he shouted, “Who are you?,” at the officers while being
removed, suggesting he either did not know the officers’ identity or was challenging the officers’
authority to remove him from the auditorium. Pl.’s Mem. at 27. Yet, the plaintiff did so only
after first shouting, “So this is America. This is America!,” suggesting he was aware he was
being removed from the auditorium on account of his standing demonstration. Hatchet Video
00:15–00:22; see Pl.’s SMF ¶ 53; Defs.’ SMF ¶ 33. Consequently, neither the plaintiff’s actions
nor his words during his removal from the auditorium negated the existence of probable cause
for the offense of unlawful entry.
In these circumstances, no reasonable jury could find a lack of probable cause to arrest
the plaintiff for the offense of unlawful entry. The parties’ contentions regarding the existence of
probable cause as to disorderly conduct and assaulting a police officer, therefore, need not be
addressed, see Devenpeck, 543 U.S. at 153, and summary judgment is appropriate on the
plaintiff’s Fourth Amendment claim in Count I as to Corporal Brown, Captain Glaubach, and
Officer Barton.
4. GW Is Not Liable
Summary judgment is also appropriate as to GW. The plaintiff agrees with the
defendants that GW, as an institutional defendant, may only be held liable for the constitutional
violations of its employees that it caused, see Pl.’s Mem. at 28 (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690–91 (1978)), contending that GW has “elevat[ed] itself effectively
above the law” by training its GWPD officers to use D.C.’s disorderly conduct statute in a
manner that “contravenes the clearly stated law of the District of Columbia,” id. at 31.
Specifically, the plaintiff argues that the statute “does not apply to private gatherings,” such as
the Clinton address, while the GWPD’s Policy Notes on the statute state that it “reinforces the
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University policy against disruption of university events.” Id. (quoting Pl.’s Mot, Ex. T at AA
000303). The plaintiff’s arguments notwithstanding, GW cannot be held liable in the absence of
a constitutional violation. See Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)
(noting the two pertinent questions when determining Monell liability are “whether plaintiff’s
harm was caused by a constitutional violation” and “whether the [entity] is responsible for that
violation”). As explained above, the plaintiff has not established that the individual defendants
falsely arrested the plaintiff in violation of his Fourth Amendment rights. Accordingly, GW is
entitled to summary judgment as to the plaintiff’s Fourth Amendment false arrest claim in
Count I.
C. The Plaintiff’s Fourth Amendment Excessive Force Claim
The Fourth Amendment also protects individuals against the use of excessive force by
officers effecting a seizure. See Graham v. Connor, 490 U.S. 386, 388 (1989). Whether a
seizure comports with the Fourth Amendment is determined by application of an “objective
reasonableness” standard, which requires “careful attention to the facts and circumstances of
each particular case, including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Id. at 396. “The ‘reasonableness’ of a particular use of
force must be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Id. Accordingly, “[n]ot every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Id.
(internal quotation marks omitted). Rather, “[t]he calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Id. at 396–97. Thus, excessive force may be found “if ‘the
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nature and quality of the intrusion on the individual’s Fourth Amendment interests’ is weightier
than the ‘countervailing government interest at stake.’” Rudder v. Williams, 666 F.3d 790, 795
(D.C. Cir. 2012) (quoting Graham, 490 U.S. at 396).
With respect to the plaintiff’s excessive force claim in Count II, the defendants urge
summary judgment on the ground that “the officers used force appropriate under [GWPD’s
Standard Operating Procedures] to gain physical control over Mr. McGovern” when they first
undertook to remove him from the auditorium, and that the plaintiff’s “resistance [exiting the
auditorium] escalated the situation to Level III, permitting” various policing tactics that were not
used by the officers in this case, such as “a takedown” of the plaintiff and use of pepper spray.
Defs.’ Mem. at 25. 9 As noted above, the plaintiff has not moved for summary judgment on
Count II, but opposes the defendants’ motion, reiterating his argument that he “had not broken
the law at the time that force was used” and thus “[n]o seizure or use of force was authorized.”
Pl.’s Opp’n at 32. The plaintiff further contends that the force used was “unreasonably
excessive” given that the plaintiff “was not arrested for a crime, but for silent standing,” “could
not have been resisting a law enforcement officer when the officers failed to show their authority
and jumped him from behind,” does not appear to have posed or been viewed by Corporal
Brown and Captain Glaubach as “constituting a threat to physical safety,” and “was left
bloodied, bruised and lacerated by Brown and Glaubach, requiring treatment by EMTs to stanch
9
The defendants also assert their entitlement to summary judgment on the plaintiff’s Fourth Amendment
excessive force claim on the ground that the plaintiff “cannot meet his burden of proof as to the standard of care
with regard to how he was handcuffed.” Defs.’ Mem. at 13. The plaintiff does not press an excessive force claim
based specifically on the manner in which he was handcuffed either in his Complaint or in his opposition to the
defendants’ motion for summary judgment. Consequently, to the extent any such claim was intended to be made,
the plaintiff has conceded the argument. See, e.g., Abdus-Sabur v. Hope Vill., Inc., No. CV 16-156 (RBW), 2016
WL 7408833, at *9 (D.D.C. Dec. 22, 2016) (citing Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.
Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 Fed. App’x 8 (D.C. Cir. 2004) (“It is well understood in this Circuit that
when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the
defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”)).
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the bleeding.” Id. at 32–33. Finally, the plaintiff “draws attention not only to the totality of the
force used but to the particularly gratuitous slamming of his body into the doorjam right in front
of Chief Hay as the officers forced McGovern out of the auditorium.” Id. at 33.
As explained above, the seizure at issue in this case was supported by probable cause that
the plaintiff was refusing to quit private property, evidenced in part by the plaintiff’s objectively
apparent resistance of the authority of the SPOs. Accordingly, the defendants were entitled to
use some force. Graham, 490 U.S. at 396 (“Our Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.”).
Nor are the plaintiff’s arguments regarding the Graham factors persuasive. Contrary to
the plaintiff’s assertion, probable cause existed to arrest the plaintiff for refusing to quit GW’s
property. While less serious than an offense involving outright violence, the offense for which
plaintiff was arrested by its very nature involves resistance of lawful authority, requiring
arresting officers to use some force to gain compliance. Moreover, as explained above, it would
have been reasonable for the officers to perceive the plaintiff’s failure to acknowledge their
initial presence as the plaintiff ignoring, rather than lacking awareness of, the officers’ authority.
Further, the plaintiff resisted the officers’ physical contact while being removed from the
auditorium. From a reasonable officer’s perspective, this resistance would be particularly
troubling in the context of a high-profile, high-security event involving the Secretary of State of
the United States. Finally, video footage shows that the plaintiff’s contact with the door while
being removed from the auditorium, described by the plaintiff as “gratuitous slamming,”
occurred while the officers were exerting considerable effort to control the movements of the
plaintiff, who was resisting them. See Hatchet Video 00:21–00:24. While on a motion for
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summary judgment, “facts must be viewed in the light most favorable to the nonmoving party,”
when a party’s version of the facts is “blatantly contradicted by the record,” that version “should
not [be] adopt[ed]” for purposes of the motion. Scott, 550 U.S. at 380. Although the plaintiff
urges a version of events in which the officers exercised full control of him, deliberately
slamming him into the door, the video footage reflects that the plaintiff’s contact with the door
occurred while he struggled against the officers’ forcible but not otherwise unreasonable removal
of him from the auditorium.
In these circumstances, no reasonable jury could determine the force used was
objectively unreasonable, and, thus, the plaintiff has not shown a violation of a constitutional
right. Accordingly, each of the defendants is entitled to summary judgment on the plaintiff’s
Fourth Amendment excessive force claim in Count II.
D. The Plaintiff’s First Amendment False Arrest & Excessive Force Claims
In his Complaint, the plaintiff asserts that his arrest “as he stood silently expressing
dissent violated his rights under the First . . . Amendment[]” and “effected an abridgment of his
free speech rights.” Compl. ¶ 93. The plaintiff also asserts that “[t]he excessive use of force
was, in whole or in part, in retaliation for the fact that [the] 71-year-old [plaintiff] stood in silent
dissent and silent expression within the audience gallery.” Compl. ¶ 98. In essence, the plaintiff
claims that his arrest and the use of force against him were in retaliation for his exercise of First
Amendment rights. See, e.g., Patterson v. United States, 999 F. Supp. 2d 300, 310 (D.D.C.
2013) (noting the D.C. Circuit has recognized “a First Amendment right not to be arrested in
retaliation for one’s speech” (citing Dellums v. Powell, 566 F.2d 167, 195–96 (D.C. Cir. 1977))).
In his briefing on the instant motions for summary judgment, the plaintiff makes barely a
passing reference to the First Amendment. Although the plaintiff takes care to note that his
conduct at the event was “within his clearly established constitutional rights to engage in
34
peaceable free speech activities and to petition to government . . . under the First Amendment
without retaliation under color of law,” Pl.’s Opp’n at 38, the plaintiff also states that “there is no
suggestion by plaintiff that GW, as a private institution, must conform to the First Amendment
when it issues internal policies regarding university events inside a private auditorium for which
tickets are needed and where the public is expressly excluded,” id. at 13–14 (citing Supreme
Court case law strictly limiting the types of private property upon which the First Amendment
applies). In conceding that point, the plaintiff acknowledges that he possessed no First
Amendment rights during the events at issue here. See, e.g., Hudgens v. NLRB, 424 U.S. 507,
520 (1976) (concluding “the constitutional guarantee of free expression has no part to play” in
cases involving speech activities on private property unless the property has been wholly
“dedicat[ed] . . . to public use”). Consequently, he has failed to establish the violation of a
constitutional right, and each of the defendants is entitled to summary judgment on the plaintiff’s
First Amendment claims in Counts I and II.
IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motion to strike is granted, the defendants’
motion for summary judgment is granted, and the plaintiff’s motion for partial summary
judgment is denied. The Clerk of the United States District Court for the District of Columbia is
directed to close this case.
An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Hon. Beryl A.
Howell
DN: cn=Hon. Beryl A. Howell, o=U.S.
Date: March 28, 2017 District Court for the District of
Columbia, ou=Chief Judge,
email=Howell_Chambers@dcd.usco
urts.gov, c=US
Date: 2017.03.28 10:07:05 -04'00'
__________________________
BERYL A. HOWELL
Chief Judge
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