McGovern v. George Wash. Univ., Civil Action No. 14–215 (BAH)

• Court: U.S. District Court — District of Columbia
• Writing for the Court: BERYL A. HOWELL, Chief Judge
• Citation: 245 F.Supp.3d 167
• Parties: Raymond MCGOVERN, Plaintiff, v. GEORGE WASHINGTON UNIVERSITY, et al., Defendants.
• Docket Number: Civil Action No. 14–215 (BAH)
• Decision Date: 28 March 2017

245 F.Supp.3d 167

Raymond MCGOVERN, Plaintiff,
v.
GEORGE WASHINGTON UNIVERSITY, et al., Defendants.

Civil Action No. 14–215 (BAH)

United States District Court, District of Columbia.

Signed March 28, 2017

245 F.Supp.3d 171

Mara E. Verheyden–Hilliard, Carl L. Messineo, Partnership for Civil Justice, Inc., Washington, DC, for Plaintiff.

Daniele Eubanks Herndon, Nicholas S. McConnell, James N. Markels, Nicholas S. McConnell, Jackson & Campbell, P.C., Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

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 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,

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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 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, 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

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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 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...