[00:00:04] Speaker 06:
Case number 17-7073, Raymond McGovern, appellate, versus Christopher Brown, badge number 018, and his individual and official capacities at L. Mr. Hayden Hilliard for the appellate, Mr. McConnell for the appellate.

[00:00:23] Speaker 00:
Good morning.

[00:00:24] Speaker 00:
May it please the court, Mara Ver Hayden Hilliard on behalf of Raymond McGovern, appellate, and also present is Carl Messinia.

[00:00:33] Speaker 00:
At issue before the court is a very narrow question on appeal involving whether the offense of unlawful entry refusal to quit can lie in the absence of an express directive being given, an express directive to quit.

[00:00:50] Speaker 00:
The lower court erred in its ruling by determining that an express directive to leave the premises for unlawful entry, refusal to quit, is no longer required and that a directive may be implicitly inferred instead.

[00:01:07] Speaker 00:
that ruling were it to stand would impact not only unlawful entry, law in the District of Columbia, and it is a position that the D.C.

[00:01:17] Speaker 00:
Court of Appeals has never taken, has never held.

[00:01:21] Speaker 00:
The D.C.

[00:01:21] Speaker 02:
Court of Appeals has always required... So your argument, this case turns on if we, looking at the record and looking at the video, think that Brown asked McGovern to leave.

[00:01:34] Speaker 02:
If that's the conclusion we come to, then

[00:01:36] Speaker 02:
Your argument evaporates, right?

[00:01:39] Speaker 00:
I disagree, Your Honor.

[00:01:41] Speaker 00:
I believe that.

[00:01:42] Speaker 02:
If we think that Brown asked McGovern to leave.

[00:01:48] Speaker 02:
If this court were to determine that.

[00:01:50] Speaker 02:
That's the hinge, isn't it?

[00:01:51] Speaker 02:
If we decided that he asked McGovern to leave, then the argument you have right now evaporates, right?

[00:01:59] Speaker 00:
If this court were to find, yes, that there was an express directive to leave that was issued, followed by a refusal to quit, that portion of the case, that addresses that portion of the case, there is also the issue of excessive force.

[00:02:18] Speaker 00:
Pending.

[00:02:19] Speaker 00:
The issue, in addition to the state of the law in terms of unlawful entry and the requirement that there be an express directive to quit, is also that the case law is... May I interrupt you?

[00:02:32] Speaker 00:
Yes.

[00:02:35] Speaker 03:
It seems to me hypothetically possible that an individual could go on premises for reasons other than

[00:02:46] Speaker 03:
whatever it is, the premises are designed to allow individuals to come on and go onto the premises with the purpose and the effect of doing something that is in violation of why the premises are open to the public.

[00:03:06] Speaker 03:
And I keep thinking of all the labor cases, for example, grocery stores.

[00:03:13] Speaker 03:
People can go into the grocery stores to go shopping, but if they go into a grocery store to pick it, then that's a trespass.

[00:03:22] Speaker 03:
And why would you have, in that situation, why would you have to first tell them leave?

[00:03:27] Speaker 03:
Why couldn't you just have them usher down?

[00:03:30] Speaker 03:
In other words, it's the entry, not the refusal to leave once they've been directed to.

[00:03:40] Speaker 03:
Isn't that what occurred here?

[00:03:42] Speaker 00:
In this instance, Mr. McGovern, and it's not disputed, was a ticketed invited guest.

[00:03:48] Speaker 00:
In order to divest him of his right to be present, there's a requirement of revocation of that right through a directive to leave or a directive

[00:03:59] Speaker 00:
There are circumstances where a trespass might lie, where there are policies that are made known to a person in advance as to what is considered acceptable or unacceptable behavior.

[00:04:12] Speaker 03:
The university had a policy, and the policy, Mr. McGovern, violated.

[00:04:18] Speaker 03:
Now, does the university have to read that?

[00:04:21] Speaker 03:
Didn't he have an obligation to do that?

[00:04:25] Speaker 03:
discover what the rules of engagement were on the university property.

[00:04:32] Speaker 00:
Indeed.

[00:04:32] Speaker 00:
And in the record, Your Honor, the university's policy was both not, they acknowledged that it was not given or directed to the invitees or to people.

[00:04:43] Speaker 00:
It was not made known to them.

[00:04:44] Speaker 00:
The lower court acknowledged that.

[00:04:45] Speaker 00:
But there's a second issue there, too, which is what the university policy was

[00:04:50] Speaker 00:
varied from event to event.

[00:04:52] Speaker 00:
So there was no, and that is also in the record, there was no explicit policy as to what was considered acceptable or unacceptable behavior.

[00:04:59] Speaker 00:
Indeed, the deponents, the chief of police, the officers in this case testified that for some speakers, completely event to event and with no notice to the audience, standing up, and not only just standing up, but speaking out and engaging and back and forth might be welcome.

[00:05:18] Speaker 00:
So there was no way, no notice, no information given.

[00:05:22] Speaker 00:
Each decision was made case by case, event by event, as to what was going to be considered acceptable or unacceptable behavior.

[00:05:29] Speaker 03:
And in terms of the issue of a directive to quit, the lower court's ruling finding that- Do you dispute that standing up with your back to the speaker in this case was unacceptable behavior?

[00:05:46] Speaker 00:
They're, in fact, in the record in going through GW's own depositions and own policies, and we put this in the brief.

[00:05:55] Speaker 00:
Yes, we do dispute, because standing silently with a back turn.

[00:06:00] Speaker 03:
It wouldn't matter whether he was directed to leave or not, if that's your theory, that he wasn't violating any school policy.

[00:06:09] Speaker 00:
They would have the right to direct him to leave.

[00:06:11] Speaker 00:
Yes, they could make the decision on the spot that we don't like that and we want him to leave, but then they have to expressly divest him of his right to be president and, in fact, then direct him to leave.

[00:06:22] Speaker 02:
And your argument is when the officer said, sir, can you please come with me, that that was not a direction to follow the officer.

[00:06:31] Speaker 00:
That was not a directive to leave the premises, and the facts and circumstances surrounding that statement, which is what I was getting to, goes to these larger issues with USV Mendenhall, what this Court has addressed in USV Wood and USV Castle, involving

[00:06:50] Speaker 00:
when a voluntary or consensual encounter transforms into a compulsory encounter.

[00:06:57] Speaker 00:
So with the lower courts ruling in place, that would have significant implications where police officers frequently engage in voluntary discussion and consensual encounters with people where Fourth Amendment protections would not apply because it was not considered compulsory.

[00:07:16] Speaker 00:
Here we have an officer who was standing

[00:07:18] Speaker 00:
behind.

[00:07:19] Speaker 00:
He was not in the line of sight.

[00:07:20] Speaker 00:
He made a decision to stand behind and to speak in what he identified as a normal tone of voice to request Mr. McGovern come with him.

[00:07:30] Speaker 00:
There was no directive.

[00:07:31] Speaker 00:
There was no command.

[00:07:32] Speaker 00:
And as he stated, he was at pains not to appear to be aggressive.

[00:07:36] Speaker 00:
And the officer himself acknowledged that he did not believe in an admission that there was probable cause to arrest for unlawful entry because he was never attempting to lay the predicate for that arrest.

[00:07:47] Speaker 03:
The video seems to me anyway, if my memory is right, is he wasn't directly behind him.

[00:07:55] Speaker 03:
He was off to the side.

[00:07:57] Speaker 03:
He was behind him, but off to the side.

[00:07:59] Speaker 00:
He's outside of his line of vision.

[00:08:03] Speaker 00:
He's standing behind to the side of him, but not adjacent to the side.

[00:08:08] Speaker 03:
When he puts his hand on McGovern's shoulder, McGovern doesn't make sure that he's still looking this way.

[00:08:13] Speaker 03:
He doesn't turn.

[00:08:15] Speaker 00:
He does not turn.

[00:08:16] Speaker 00:
That person could have been anyone.

[00:08:17] Speaker 00:
The officer didn't say I'm a police officer, didn't say I'm speaking on behalf of GW.

[00:08:22] Speaker 00:
It could have been just a disgruntled audience member.

[00:08:24] Speaker 00:
It could be anyone.

[00:08:25] Speaker 00:
And in this area of the law, it's important to act with precision for police officers or for anyone who's issuing a directive to quit to, in fact, issue that directive.

[00:08:35] Speaker 00:
There was no show of it.

[00:08:36] Speaker 05:
You mentioned something about unlawful entry.

[00:08:38] Speaker 05:
That's not the issue.

[00:08:40] Speaker 00:
I'm sorry, Your Honor?

[00:08:41] Speaker 05:
Unlawful entry is not the issue.

[00:08:44] Speaker 00:
Unlawful entry, refusal to quit.

[00:08:46] Speaker 00:
Not a lawful entry, ab initio.

[00:08:49] Speaker 00:
So it's the issue in this case is unlawful entry refusal to quit.

[00:08:54] Speaker 00:
But the lower court erred by applying Ortberg, which is unlawful entry of admission, unlawful entry upon entry, where the will of the owner may be manifest through implied but not expressed means.

[00:09:06] Speaker 00:
That has never been applied to the offense of unlawful entry refusal to quit, which is a different offense in the same statute.

[00:09:20] Speaker 02:
Thank you.

[00:09:31] Speaker 04:
May it please the Court, Nicholas McConnell on behalf of George Washington University and the other appellees.

[00:09:38] Speaker 04:
Before we delve into the key issue in the case, whether probable cause existed for the arrest of Mr. McGovern, there are three items that are not before the Court.

[00:09:47] Speaker 04:
First, there are no First Amendment claims left in this case.

[00:09:50] Speaker 04:
The plaintiff concedes as much in the reply brief.

[00:09:53] Speaker 04:
at footnote five on page 28 of the brief.

[00:09:58] Speaker 04:
Second, the only excessive force claim in the case is that related to the removal of Mr. McGovern from the auditorium.

[00:10:08] Speaker 04:
In the court below, in the reply brief in this case, an emphasis was placed on activity that occurred once Mr. McGovern had left the auditorium and was off videotape.

[00:10:19] Speaker 04:
In the court below, in the statement of material facts, undisputed material facts,

[00:10:24] Speaker 04:
The defendants at police asserted that there were no further physical activities complained of outside the auditorium.

[00:10:34] Speaker 04:
So we're looking at a case that's on videotape.

[00:10:37] Speaker 02:
Do you agree with your friend's argument that the law makes a distinction between the type of communication that needs to be made by the property holder in the first instance, ab initio,

[00:10:49] Speaker 02:
and the type of communication that needs to be made when the property owner is requiring someone to quit?

[00:10:57] Speaker 04:
I do not, Your Honor.

[00:11:00] Speaker 04:
It seems to me that the cases that do look at the second prong of the unlawful entry statute make it clear that the verbal formulation of Ortberg has been applied by the courts

[00:11:14] Speaker 04:
in the second refusal to leave the circumstance.

[00:11:17] Speaker 02:
So there can be an implied direction to quit, you think?

[00:11:19] Speaker 02:
Correct.

[00:11:20] Speaker 04:
Yes, Your Honor.

[00:11:21] Speaker 04:
And I think that's quite clear from the cases.

[00:11:22] Speaker 04:
For example, the Bertie v. U.S.

[00:11:24] Speaker 04:
case, which we cite, 569 Atlantic Second, where the D.C.

[00:11:28] Speaker 04:
Court of Appeals was addressing a person who was on a tour in the White House.

[00:11:34] Speaker 04:
And it was an organized tour, and there's a path through the White House that they were required to follow, and they were instructed or is understood.

[00:11:42] Speaker 02:
Does your argument turn on that distinction, or is your argument that there was actually an express direction to quit here?

[00:11:49] Speaker 04:
I believe it's an express direction.

[00:11:51] Speaker 04:
Sir, can you please come with me?

[00:11:52] Speaker 04:
Under the totality of the circumstances, there's only one way that that could be understood by a person standing in the middle of an audience in the midst of a formal presentation.

[00:12:03] Speaker 02:
What do you do with your opponent's argument that an invitee to an event like this would have no reason to know that standing silently was going to be construed as a disruption of the event?

[00:12:15] Speaker 02:
When other similar events, it's encouraged.

[00:12:21] Speaker 04:
It's a matter of common sense, Your Honor.

[00:12:23] Speaker 04:
This is a formal presentation by the Secretary of State.

[00:12:26] Speaker 04:
In what way was this disruptive?

[00:12:27] Speaker 04:
He was quiet.

[00:12:29] Speaker 04:
He was standing in the middle of an audience for the purpose.

[00:12:32] Speaker 04:
His own declared purpose was in his deposition testimony.

[00:12:36] Speaker 04:
was to demonstrate against what he thought was false improper adulation directed toward the Secretary of State as a result of the applause she received when she was announced as a speaker.

[00:12:48] Speaker 04:
He said he had an instant flashback to his service in Russia where he had seen audiences wildly applauding Russian figureheads.

[00:12:58] Speaker 02:
But the GW policy speaks about must give the speaker a respectful hearing, right?

[00:13:03] Speaker 01:
Yes.

[00:13:04] Speaker 01:
And that implies a right... What in the world does that mean?

[00:13:08] Speaker 01:
Does that mean you don't fall asleep when you're in the audience?

[00:13:11] Speaker 04:
It means you don't disrupt others who are present to see and hear this presentation.

[00:13:16] Speaker 02:
By standing in the midst of an audience... And was there evidence that he was disruptive of others?

[00:13:19] Speaker 04:
He certainly was, Your Honor.

[00:13:21] Speaker 02:
That was his intent.

[00:13:23] Speaker 02:
How so?

[00:13:23] Speaker 02:
Not his intent, but that he actually was disrupted.

[00:13:25] Speaker 04:
Yes, yes.

[00:13:26] Speaker 04:
He's standing up in the front of people.

[00:13:27] Speaker 04:
He's in the middle of an audience, standing up in the middle of a formal presentation.

[00:13:33] Speaker 04:
Part of the right to hear and attend this event is not only to

[00:13:36] Speaker 04:
hear what the speaker is saying, but to see the speaker during the address.

[00:13:40] Speaker 04:
There were people in that audience behind this individual who, for his own motivations, has decided to stand up and stage a protest in the middle of an event.

[00:13:48] Speaker 02:
Was there evidence that they felt that their experience at the event had been disrupted?

[00:13:53] Speaker 04:
Well, we don't know, Your Honor.

[00:13:56] Speaker 02:
OK, then the answer is no.

[00:13:59] Speaker 04:
No.

[00:14:01] Speaker 04:
Except for the fact, we're looking at this from the viewpoint of the officers themselves, what is reasonable under the circumstances.

[00:14:08] Speaker 04:
This is a room filled with people who have come to see this presentation.

[00:14:11] Speaker 02:
Until officers get to decide whether it's disruptive or not?

[00:14:15] Speaker 04:
Under the circumstances, they would, Your Honor.

[00:14:17] Speaker 04:
Yes.

[00:14:17] Speaker 02:
And where do we get to the disruptive element?

[00:14:20] Speaker 02:
I mean, the policy talks about must give the speaker a respectful hearing.

[00:14:26] Speaker 02:
Yes.

[00:14:26] Speaker 02:
How do we leap from there to disruption?

[00:14:29] Speaker 04:
Well, the thing is, other members of the audience are entitled.

[00:14:32] Speaker 04:
They have a right as well.

[00:14:33] Speaker 02:
No, I'm sorry.

[00:14:34] Speaker 02:
Maybe I'm just missing it.

[00:14:35] Speaker 02:
I just read from the GW policy.

[00:14:38] Speaker 02:
Must give the speaker a respectful hearing.

[00:14:40] Speaker 02:
Remind me how we get from there to disruption.

[00:14:45] Speaker 04:
Disruptions, it seems to be a particular form of... Standing up in the middle of a formal presentation while other people are trying to focus their attention is disrespectful towards the speaker.

[00:14:57] Speaker 03:
And turning his back on... Yes.

[00:15:00] Speaker 03:
This story about learned hand where during an oral argument like we have here, one of his law clerks comes in, hands him a memo, and he swung his chair around and started reading it

[00:15:14] Speaker 03:
And the attorney who was arguing, it was Wayman Kirkland, Kirkland and Ellis, stopped talking and hand went, continue Mr. Kirkland, and Kirkland said, I speak to no man's back.

[00:15:28] Speaker 03:
and hands swung around.

[00:15:29] Speaker 03:
And that's an illustration of why it was disrespectful.

[00:15:34] Speaker 02:
Would it be if Mr. Mayor Gov.

[00:15:37] Speaker 02:
had fallen asleep during Secretary Clinton's remarks, would that have been disrespectful?

[00:15:41] Speaker 04:
So long as he's not disturbing people around him.

[00:15:43] Speaker 02:
Where do we get the disturbing elements?

[00:15:45] Speaker 02:
That's what I'm getting to you.

[00:15:47] Speaker 04:
Where is the disturbance?

[00:15:50] Speaker 02:
Where do we look for the language that disruption is a violation of policy?

[00:15:57] Speaker 02:
Is that in policy, or is that just a common sense application?

[00:16:01] Speaker 04:
It's a common sense application of the nature of the event.

[00:16:05] Speaker 04:
This is an event on private property at the university.

[00:16:09] Speaker 04:
People were invited through Mr. McGovern, through artifice.

[00:16:13] Speaker 02:
Other events were just like this, where people were allowed to speak out and they weren't asked to leave.

[00:16:22] Speaker 04:
Correct, where it was clear that the speaker himself or herself was inviting that sort of an exchange, impromptu exchange.

[00:16:30] Speaker 04:
The example was, you know, a controversial figure like Professor Cornel West appears and he wants to engage with the audience.

[00:16:38] Speaker 04:
That's the whole purpose.

[00:16:39] Speaker 04:
This is quite a different event.

[00:16:41] Speaker 02:
You know that Secretary Clinton didn't want anyone standing and turning their back on her.

[00:16:47] Speaker 04:
Well, it's a matter of what they observed happening.

[00:16:51] Speaker 02:
The invitation to the event, by the way... I mean, he started standing from the beginning, right?

[00:16:55] Speaker 02:
Everyone was standing.

[00:16:57] Speaker 02:
Everyone stood up.

[00:16:58] Speaker 02:
Then they sat down and he remained standing.

[00:17:02] Speaker 02:
Yes.

[00:17:02] Speaker 02:
Did Secretary Clinton acknowledge that he was there?

[00:17:06] Speaker 02:
Did it pose any problem to her from what you can tell?

[00:17:08] Speaker 02:
No.

[00:17:08] Speaker 04:
No.

[00:17:09] Speaker 04:
She continued to speak on videotape, but it's obvious that other members, if on review of the videotape, and the key part of this case is this event is videotaped, looking at the videotape, the reaction of audience members can be seen.

[00:17:23] Speaker 04:
They are being distracted by the fact that Mr. McGovern has stood up, taken his coat off, taken his shirt off, wearing a t-shirt with

[00:17:31] Speaker 03:
Before you run out of time, I want to go back to another question.

[00:17:38] Speaker 03:
Tell me about the t-shirt he was wearing.

[00:17:42] Speaker 04:
It was a t-shirt with a slogan of some kind on it.

[00:17:46] Speaker 04:
And we're not into a content First Amendment type argument.

[00:17:50] Speaker 03:
That wasn't the important point.

[00:17:51] Speaker 03:
That's not why I'm asking.

[00:17:52] Speaker 03:
Was the content on the back of the shirt?

[00:17:56] Speaker 04:
It was on the front.

[00:17:58] Speaker 04:
So the content on this shirt, if I recall correctly, is toward audience members who are now behind him looking at this.

[00:18:05] Speaker 03:
And he took off, he had a jacket on.

[00:18:07] Speaker 03:
He had a jacket.

[00:18:08] Speaker 03:
And he took that off to display the t-shirt.

[00:18:10] Speaker 04:
He had a jacket and a shirt, both of which he took off.

[00:18:12] Speaker 03:
Now, all we're talking about here is probable cause, right?

[00:18:15] Speaker 03:
Correct.

[00:18:16] Speaker 03:
If a police officer saw that and said, well, this guy came into this auditorium for the purpose of putting on a protest,

[00:18:27] Speaker 03:
and we don't allow that, at least I think there's probable cause that he is disrupting the event or whatever, because that's all we're talking about.

[00:18:39] Speaker 03:
Is that part of your, is that idea, that's not... That is clearly part of the record, Your Honor.

[00:18:45] Speaker 03:
It's not refusal to leave, it's an unlawful entry for that reason.

[00:18:51] Speaker 04:
In part.

[00:18:51] Speaker 03:
And probable cause.

[00:18:52] Speaker 03:
And the law is such that the police officer

[00:18:57] Speaker 03:
expressing or having probable cause doesn't have to know exactly what crime somebody is committing as long as there's probable cause to believe some crimes.

[00:19:07] Speaker 04:
Which is the other important piece of this.

[00:19:09] Speaker 04:
We haven't talked about it yet.

[00:19:10] Speaker 04:
That's the security element of this.

[00:19:12] Speaker 04:
Even Mr. McGovern concedes it's a high-level CIA, former official, briefing presidents daily.

[00:19:17] Speaker 04:
The security for this event was, as he described it, as tight as any as he had ever seen.

[00:19:22] Speaker 04:
He's in a very small auditorium.

[00:19:23] Speaker 04:
He's 30 feet away from the Secretary of State.

[00:19:26] Speaker 04:
He suddenly stands up, having just disrobed.

[00:19:29] Speaker 03:
He didn't suddenly stand up.

[00:19:31] Speaker 03:
I thought everybody stood up and applauded.

[00:19:33] Speaker 03:
Stood up and applauded.

[00:19:34] Speaker 03:
And then he didn't sit down.

[00:19:36] Speaker 04:
Correct.

[00:19:37] Speaker 04:
I stand corrected.

[00:19:38] Speaker 05:
What's the probable cause to arrest the what?

[00:19:43] Speaker 04:
A probable cause for disruption of the event, refusal to leave.

[00:19:49] Speaker 04:
What's the statutory prescription upon which you're relying?

[00:19:55] Speaker 04:
The principal reliance here is on the refusal to quit portion of the unlawful entry statute.

[00:20:01] Speaker 05:
Are they disjunctive?

[00:20:03] Speaker 05:
Excuse me?

[00:20:04] Speaker 05:
Are they disjunctive, unlawful entry and the refusal to quit?

[00:20:08] Speaker 05:
Are they disjunctive?

[00:20:10] Speaker 04:
Uh, no, they, they can, it can be both.

[00:20:13] Speaker 05:
So someone can enter.

[00:20:15] Speaker 05:
Must it be both?

[00:20:16] Speaker 04:
No, no.

[00:20:17] Speaker 04:
Violation of either portion of the statute is sufficient to trigger the statute itself.

[00:20:21] Speaker 04:
If you enter lawfully, but then fail to comply with a lawful request to quit, you've violated the statute.

[00:20:28] Speaker 04:
You can enter with an unlawful purpose.

[00:20:30] Speaker 04:
And there is some basis in this record to think Mr. McGovern did do that.

[00:20:34] Speaker 03:
Does that mean every trespass in the District of Columbia is a crime?

[00:20:41] Speaker 04:
Technically, yes, under the statute.

[00:20:44] Speaker 04:
If you do not have permission to enter property, you trespass on that property.

[00:20:48] Speaker 04:
Technically, you have violated the statute.

[00:20:50] Speaker 03:
If I'm walking along the sidewalk, and the sidewalk is broken up or something, and I go around it onto somebody's front yard, I'm committing a criminal offense?

[00:21:02] Speaker 04:
Interesting question.

[00:21:03] Speaker 04:
Under the statute, potentially?

[00:21:08] Speaker 05:
The excessive force portion of this not go to a jury?

[00:21:12] Speaker 04:
It's an objective standard, Your Honor.

[00:21:16] Speaker 04:
The videotape is there to be reviewed.

[00:21:21] Speaker 04:
Court of Appeals, this court has approved, or the lower court has approved, the use of force matrix that clearly encompasses the level of force used by the officers under these circumstances.

[00:21:33] Speaker 04:
Refusal to acknowledge the presence of the police officer, and it's quite clear from the videotape, and courts are, the Supreme Court has instructed us, courts are to look at- Well, that wouldn't justify excessive force.

[00:21:43] Speaker 05:
Excuse me?

[00:21:44] Speaker 05:
That wouldn't justify excessive force.

[00:21:47] Speaker 04:
If there were excessive force.

[00:21:48] Speaker 05:
Isn't that a question that the jury would decide in these circumstances?

[00:21:52] Speaker 04:
At least at a threshold level, that's a legal issue for the courts to take a look at.

[00:21:57] Speaker 04:
They do that.

[00:22:00] Speaker 05:
Suppose I take a look at it and I'm like, sure, I think it can go either way.

[00:22:04] Speaker 04:
Well, the issue there, Your Honor, is the application of the matrix.

[00:22:08] Speaker 04:
What was the conduct?

[00:22:09] Speaker 04:
What is the objective standard?

[00:22:11] Speaker 04:
The use of force is an objective standard.

[00:22:13] Speaker 04:
That's the teaching from the Supreme Court.

[00:22:19] Speaker 04:
In terms of whether the force used under the circumstances was reasonable, it's an objective test that the courts do and can and do apply.

[00:22:29] Speaker 05:
in the first instance.

[00:22:30] Speaker 05:
That is a question that never goes to the jury?

[00:22:33] Speaker 04:
No.

[00:22:33] Speaker 04:
No.

[00:22:34] Speaker 04:
It can.

[00:22:34] Speaker 04:
Of course it can.

[00:22:36] Speaker 04:
So that's what I'm saying.

[00:22:37] Speaker 05:
Why wouldn't it go in this case?

[00:22:39] Speaker 05:
I think it's close, and I can't decide on any matrix.

[00:22:44] Speaker 04:
Looking at the videotape and looking at the matrix on what force was actually applied here, it can be seen that the police officers are using the least amount of force necessary to accomplish the purpose once

[00:22:58] Speaker 04:
That's your argument.

[00:22:59] Speaker 04:
Yes.

[00:23:00] Speaker 04:
Yes, Your Honor.

[00:23:01] Speaker 04:
And I think it's visible from the tape.

[00:23:04] Speaker 04:
And suppose that's debatable.

[00:23:05] Speaker 05:
It goes to a jury.

[00:23:07] Speaker 04:
If, in fact, the court applying an objective standard looked at the tape and said, there is a question here as to whether or not this amount of force was unreasonable, that would be a jury question.

[00:23:17] Speaker 04:
I agree, Your Honor.

[00:23:18] Speaker 04:
But that is what courts do.

[00:23:20] Speaker 04:
They look at the evidence.

[00:23:21] Speaker 04:
They assess it.

[00:23:22] Speaker 04:
They apply an objective test.

[00:23:23] Speaker 04:
No, this use of force, whatever force may get to a point that a jury question arises, clearly we can say, looking at what happened here, these officers are acting appropriately and responsibly.

[00:23:37] Speaker 02:
Okay, thank you very much.

[00:23:40] Speaker 02:
Give back two minutes for rebuttal.

[00:23:46] Speaker 00:
Thank you, Your Honor.

[00:23:47] Speaker 00:
Very quickly, if I could reference the joint appendix to address the question that Your Honor was asking.

[00:23:55] Speaker 00:
At JA 406, 407, defendant Glaubach stated that there is no description or definition published to the public as to what conduct will be considered acceptable or unacceptable by GW police, so that there is no way for the public to know

[00:24:12] Speaker 00:
that what they are doing would somehow be in violation of a policy.

[00:24:16] Speaker 05:
You can't go so far with that, can you?

[00:24:18] Speaker 05:
Suppose he came in with lots of soda and he was clearly angry about something and just threw it up in the air and splashed everyone behind him.

[00:24:29] Speaker 05:
You'd have no reason to know that that might cause him to be ejected.

[00:24:32] Speaker 00:
Oh, I would not argue that and I'm certainly not arguing that here.

[00:24:35] Speaker 05:
Do you want me to draw the line on the argument you were just raising?

[00:24:38] Speaker 05:
It's not published anywhere.

[00:24:40] Speaker 05:
GW doesn't have anything about throwing soda during events.

[00:24:43] Speaker 00:
Oh, if I can finish the point that I was making, it may answer that question more clearly.

[00:24:49] Speaker 00:
Because additionally, they testified that conduct that's acceptable at events varies from event to event at 406, 407.

[00:24:56] Speaker 00:
And at 369, 370, the assistant chief testified that if they had Cornell West here or somebody that controversial, and they say I want people, I want feedback, I want heated arguments, that would be OK.

[00:25:10] Speaker 00:
So my reference

[00:25:11] Speaker 00:
to the point as to what's published in terms of acceptable or unacceptable conduct when we're talking about someone standing or turning their back, there is no way for an audience member to know that a silent act of dissent is going to automatically imply... Let me give you the answer.

[00:25:27] Speaker 05:
In the Cornell West, anyone who goes to a Cornell West event knows that he wants you yelling and screaming and taking him on.

[00:25:35] Speaker 05:
And you may end up in there by accident and not realize it, but then you'd probably get engaged with the rest of the crowd.

[00:25:42] Speaker 05:
Anyone going to the Secretary of State speech, I would say, would assume that that is not permissible conduct.

[00:25:49] Speaker 05:
Common sense would tell you, you don't need a brochure that says, OK, in this event, we expect you to be respectful.

[00:25:57] Speaker 00:
Well, yelling and screaming, perhaps.

[00:25:59] Speaker 05:
But I would not assume that Secretary of State Clinton.

[00:26:02] Speaker 05:
Blocking the view of others, standing in block.

[00:26:04] Speaker 05:
It's obvious what's being done.

[00:26:08] Speaker 05:
Obviously intending to make a statement.

[00:26:10] Speaker 05:
Now the problem is he's blocking the view of others and doing it purposefully.

[00:26:14] Speaker 05:
One would assume that's not acceptable conduct, yes?

[00:26:18] Speaker 05:
I wouldn't assume the secretary's... Really, you wouldn't assume if you went to an event like this, if you stood up, turned around and blocked the view of those behind you, that people might wonder why you're doing that.

[00:26:29] Speaker 05:
That's rude and not acceptable given the nature of the event.

[00:26:33] Speaker 00:
I guess what I'm referring to is your question as to what the speaker is finding welcome or unwelcome.

[00:26:38] Speaker 00:
I don't know that, Secretary Clinton, we don't know that that would be considered a silent act of dissent, would be considered unwelcome.

[00:26:45] Speaker 00:
In the record, there were no complaints that anyone's view was bought.

[00:26:49] Speaker 03:
What was the message on the T-shirt?

[00:26:51] Speaker 00:
It simply said, veterans for peace.

[00:26:53] Speaker 00:
That was the message.

[00:26:54] Speaker 00:
But on the issue of the directive to quit, because what I was referencing just had to go with whether or not there could be unlawful entry of an issue as opposed to a directive to quit being issued,

[00:27:09] Speaker 00:
We believe in here, when someone was present, that they had to be divested of their license to be present without other knowledge being issued by the police officer.

[00:27:20] Speaker 00:
No directive being given by the police officer.

[00:27:22] Speaker 02:
And O'Brien, VDC, and Murphy... When I'm on someone else's property and they come to me and say, you must leave,

[00:27:30] Speaker 02:
That's it, game's up, right?

[00:27:32] Speaker 02:
They don't have to show me that in 10 other instances where somebody was similarly situated to me that they acted the same way.

[00:27:43] Speaker 02:
They could be arbitrary, right?

[00:27:45] Speaker 02:
Oh, I agree with your... So that's why I come back to the original question is if we come to the conclusion that he was asked to leave when they said, please come with me, if that is a directive from the property owner

[00:28:00] Speaker 02:
to vacate, to leave, the case is resolved on that ground.

[00:28:05] Speaker 00:
But you disagree with me.

[00:28:06] Speaker 00:
I agree with you that if someone had said, you must leave, there would be no dispute.

[00:28:11] Speaker 00:
But as I was referencing, for example, in USV Mendenhall, there you have federal agents, DEA agents, who spoke to someone and said, can you please come with me?

[00:28:21] Speaker 00:
She came with them.

[00:28:22] Speaker 00:
They identified themselves as agents.

[00:28:24] Speaker 00:
And that was considered consensual.

[00:28:26] Speaker 00:
So there is a body of law addressing.

[00:28:28] Speaker 03:
If I find a stranger

[00:28:30] Speaker 03:
in my living room when I get home today, I have to first say, please leave.

[00:28:35] Speaker 00:
I just can't kick them out.

[00:28:38] Speaker 00:
If the stranger was in your living room initially, that would be unlawful entry ab initio, unlawful entry at the onset, upon entry, as opposed to you invited someone in and they had a few drinks too many and you wanted them to leave, at which point you'd need to say, get out of my house.

[00:28:55] Speaker 00:
So it's two different unlawful entry offenses.

[00:28:59] Speaker 02:
Great, thank you very much.

[00:29:02] Speaker 02:
The case is submitted.