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McGovern v. George Washington University

United States District Court, District of Columbia

March 28, 2017



          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, 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 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 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 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, 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 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.


         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).

         “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).


         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 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. 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, ...

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