United States Court of Appeals, District of Columbia Circuit
March 26, 2018
from the United States District Court for the District of
Columbia (No. 1:14-cv-00215) ]
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.
RANDOLPH, SENIOR CIRCUIT JUDGE
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).
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
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?"
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,
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.
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
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.
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.
district court, McGovern conceded that because George
Washington University was a private institution, he did 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