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McGovern v. Brown

United States Court of Appeals, District of Columbia Circuit

June 1, 2018

Raymond McGovern, Appellant
v.
Christopher Brown, Badge No. 018, in his individual and official capacities, et al., Appellees

          Argued March 26, 2018

          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

          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, 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 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 ...


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