Hartley v. Wilfert , 918 F. Supp. 2d 45 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DEBRA L. HARTLEY,
Plaintiff,
v. Civil Action No. 12-1185 (JEB)
OFFICER WILFERT, et al.,
Defendants.
MEMORANDUM OPINION
On July 20, 2009, following a 225-mile trek from her home in Pennsylvania, Plaintiff
Debra Hartley arrived in Washington seeking to meet with Michelle Obama to express her
concerns about sex discrimination in law enforcement. Standing on the sidewalk in front of the
White House and wearing a vest bearing the words “Walking to the White House,” Hartley was
confronted by two uniformed Secret Service officers, Defendant Wilfert and Defendant Doe.
During this encounter, Wilfert informed Hartley that if she remained, she would be required to
provide background data, including her name, date of birth, and Social Security number, as well
as to fill out a card and submit to questions. He cautioned her that all of this information would
be recorded and advised her to leave, rather than be added to the Secret Service list and be
“considered one of the crazies who protest in front of the White House.” Intimidated by this
admonition, Hartley abandoned her efforts to communicate to the public on the White House
sidewalk.
She subsequently brought this suit against Officers Wilfert and Doe, alleging a violation
of her First Amendment rights. Defendants now move to dismiss, asserting that Plaintiff cannot
bring a Bivens action on these facts, and that even if her speech was infringed, the officers are
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entitled to qualified immunity. Because the Court finds that Hartley has stated a cognizable
Bivens claim involving a clearly established constitutional right of which the officers should
have been aware, it will deny Defendants’ Motion to Dismiss. 1
I. Background
According to the Complaint, which must be presumed true at this stage, Hartley, a former
officer with the Pocono Mountain Regional Police Department, began a 225-mile walk in July
2009 from her home in Pennsylvania to Washington “to express her concerns about sex
discrimination in law enforcement.” Compl., ¶¶ 3, 6, 7. She wore a vest with the message
“Walking to the White House” on the front and back and sought to “engage[] others and the
press during her walk to raise awareness about her concerns.” Id., ¶¶ 7, 10. After weeks of
travel, Hartley arrived at the White House and added the words “225 miles from the Pocono
Mountains” to her vest. See id., ¶ 11. Hartley inquired at the guard house by the west entrance
about a meeting with Michelle Obama, but was informed that there was no appointment listed.
See id., ¶ 12. She remained on the sidewalk in front of the White House with her friend,
answering tourists’ questions regarding her concerns about the unfair treatment of women in law
enforcement. See id., ¶ 13.
Hartley was briefly approached by Officer Doe and an unknown male officer, who asked
her about her walk. See id., ¶ 14. After this exchange, Officer Doe left, but returned shortly
thereafter with Officer Wilfert. See id. Wilfert asked Hartley similar questions about what she
was doing on the sidewalk and informed her that “if you want to protest, you can . . . but we have
rules . . . and we’re gonna have to call it in as a protest.” See id., ¶ 16. He made it clear that if
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Although Doe has not yet been served, the Motion before the Court was filed on behalf of both officers.
Additionally, Hartley’s Complaint mistakenly identified Officer Wilfert as “Officer Wolfert.” The caption was
subsequently revised to reflect the correct spelling of Defendant’s name. See ECF No. 16 (Consent Motion to
Correct Caption).
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she intended to remain on the sidewalk discussing her concerns, she would have to provide
“background data including name, date of birth and Social Security number, fill out a card, and
submit to questions.” See id., ¶ 17. Additionally, he informed her that this information would be
put into Secret Service records, and he advised her that “she would probably choose to leave
rather than be added to the Secret Service list and be ‘considered one of the crazies who protest
in front of the White House.’” See id., ¶ 18.
Intimidated by Wilfert’s statements, Hartley abandoned her speech on the sidewalk. See
id., ¶¶ 21, 28, 31 (“[Wilfert’s] statements and threats (that she had to leave or submit to detailed
inquiry and registration) in fact caused Ms. Hartley to end her expression.”). At the time of the
events, “Plaintiff had not committed any crime. She had not acted suspiciously or interfered
with Officers [Wilfert] and Doe. She had not interfered with or threatened to interfere with any
Secret Service protectee, any government function, or any member of the public.” Id., ¶ 26. On
August 19, 2010, Hartley filed a complaint with the Secret Service regarding the officers’
conduct during the incident. See id., ¶ 29. During the investigation of that complaint, Wilfert
was interviewed several times and provided varying accounts of the interaction, though he
ultimately stated that he had determined that Hartley posed no threat to the White House or
protectees and that no White House incident report was required. See id. He “also
acknowledged that he ‘may have given her the indication that she had to leave the area’ which
was a mistake and thus he should have handled the incident ‘in a different manner,’ ‘used better
judgment,’ and ‘chosen words more suitable.’” See id., ¶ 30.
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II. Legal Standard
A. 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief
when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a
motion to dismiss, the Court must “treat the complaint’s factual allegations as true and must
grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and quotation marks
omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not accept as true,
however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported by
the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although “detailed factual allegations”
are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to
state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted).
Though a plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and
unlikely,” the facts alleged in the complaint “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).
B. 12(b)(4) & 12(b)(5)
Defendants’ Motion alternatively moves to dismiss Plaintiff’s suit for insufficient service
of process under Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5). See Mot. at 21-24.
Subsequent to the filing of the Motion, however, Defendant Wilfert waived service. See ECF
No. 15. In addition, the Court extended Plaintiff’s time to serve Defendant Doe until
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February 15, 2013. See Minute Order of December 20, 2012. The Court, accordingly, will limit
its analysis to Defendants’ Motion under Rule 12(b)(6).
III. Analysis
Defendants raise two distinct challenges to Plaintiff’s claims. First, they contend that
Hartley cannot bring an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), for the alleged conduct here. See Mot. at 5-16. A Bivens
remedy should not be “created,” they argue, where a comprehensive statutory scheme – here, the
Privacy Act – has been established to provide relief in a given area. See id. at 7, 9. Second,
Defendants maintain that “[e]ven if this Court were to entertain a Bivens claim against the
individually-sued defendants, the Complaint fails to state a claim that can withstand the defense
of qualified immunity.” Id. at 16. They contend that the officers did not violate a “clearly
established specific First Amendment right” here, and “no reasonable officer would know that a
mere request for personal identifying information would cause a former law enforcement officer
to feel the need to cease engaging in First Amendment activities after having been told that she
could continue such activity.” Id. at 19, 21. The Court will consider each challenge separately.
A. Availability of a Bivens Action
Defendants argue that the circumstances here “counsel[] against the creation of an
alternative Bivens-type remedy,” where “the Privacy Act provides a comprehensive scheme for
regulating the government’s gathering, maintaining, use and dissemination of personal
identifying information, including in the context of First Amendment activities.” Id. at 7, 9.
Such consideration, Defendants assert, trumps precedent from this Circuit recognizing “a Bivens
cause of action for a First Amendment claim involving demonstrations.” Id. at 7 (citing
Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977)). The Court must separately address three
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issues to respond to Defendants’ position. First, the Court will inquire whether a Bivens action
may lie for the violation of First Amendment rights of protesters. Second, the Court must
determine if the officers’ alleged conduct here could constitute such a violation. Third, the Court
will assess Defendants’ assertion that the Privacy Act stands as Plaintiff’s sole remedial route.
1. Bivens & First Amendment Rights of Demonstrators
In Dellums, this Circuit held that a Bivens-style damages action was maintainable where
demonstrators protesting the war in Vietnam were arrested on the steps of the United States
Capitol in violation of their First Amendment rights. See 566 F.2d at 194-96. In recognizing the
cause of action, the court reasoned:
Basically, what is at stake here is loss of an opportunity to express
to Congress one’s dissatisfaction with the laws and policies of the
United States. Staged demonstrations – capable of attracting
national or regional attention in the press and broadcast media –
are for better or worse a major vehicle by which those who wish to
express dissent can create a forum in which their views may be
brought to the attention of a mass audience and, in turn, to the
attention of a national legislature. . . . The demonstration, the
picket line, and the myriad other forms of protest which abound in
our society each offer peculiarly important opportunities in which
speakers may at once persuade, accuse, and seek sympathy or
political support, all in a manner likely to be noticed. Loss of such
an opportunity is surely not insignificant.
Id. at 195. The court expressly rejected the Government’s argument that providing such a cause
of action would set a trap for the unwary policeman by “subject[ing] police officers to the
alleged perplexities of First Amendment law,” noting that the “broad good faith immunity”
available to officers exempts them from being “held to the standards of a constitutional lawyer.”
Id. at 195 n.84.
At a hearing on the current Motion, Defendants argued that the Bivens cause of action
recognized in Dellums was limited to instances in which First Amendment violations were
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coupled with Fourth Amendment violations. Nothing in that decision, however, suggests that the
viability of the cause of action there hinged on the presence of an additional constitutional
violation. In fact, the specific question before the court was whether there was a “cause of action
under Bivens for redress of First Amendment violations,” id. at 194, and the court’s analysis
focused on the harm that would result from the loss of an ability to express oneself, not on a loss
that would derive from an improper seizure. See id. at 195.
This Circuit’s recognition of a Bivens remedy for this type of First Amendment violation
in Dellums over 35 years ago is not an anomaly that might be outdated; on the contrary, its
rationale has been embraced by other circuits. See Mendocino Envtl. Ctr. v. Mendocino Cnty.,
14 F.3d 457, 464 (9th Cir. 1994) (plaintiffs stated Bivens claim where complaint contained
specific factual allegations that tended to show FBI agents intended to interfere with plaintiffs’
First Amendment rights to demonstrate and communicate their message about the environment);
Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986) (allegation that “FBI agents acted
with [] impermissible motive of curbing” plaintiff’s protected political speech stated claim
cognizable through Bivens-type action directly under First Amendment); Paton v. La Prade, 524
F.2d 862, 870 (3rd Cir. 1975) (extending Bivens remedies “to violations of first amendment
rights . . . . [I]f [plaintiff] can prove that her first amendment rights were violated by a federal
government employee, such evidence would support a cause of action for damages in the federal
courts”); see also Bistrian v. Levi, 696 F.3d 352, 376 n.9 (3rd Cir. 2012) (noting Supreme
Court’s reluctance “to extend the Bivens implied right of action to new contexts,” but holding
that “[o]ur Court, however, relying on Bivens, has held that ‘a federal cause of action for
damages may be implied directly from the [F]irst [A]mendment.’”) (quoting Milhouse v.
Carlson, 652 F.2d 371, 374 (3rd Cir. 1981), and citing Paton, 524 F.2d at 869-70)); Long Haul
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Inc. v. Regents of Univ. of California, No. 09-168, 2009 WL 4546684, at *7 (N.D. Cal. Nov. 30,
2009) (permitting Bivens-First Amendment claim, but noting that plaintiffs must plead that
defendants acted with “impermissible motive of retaliating against Plaintiffs or curbing their
First Amendment activities”); Jihaad v. Carlson, 410 F. Supp. 1132, 1134 (E.D. Mich. 1976)
(“[t]he rationale of Bivens may, in a proper case, be applied to violations of the first as well as
the fourth amendment”).
Indeed, in Paton, the Second Circuit observed:
Were there no cause of action for federal infringement of first
amendment rights, an aggrieved individual could seek damages for
violations of his first amendment rights by state officials, 42
U.S.C. § 1983, but not by federal officials. There is no reason to
allow federal officials to act with impunity in this context and to
bar state officials. The damage to the individual’s first amendment
interests is the same regardless of the perpetrator of the violation.
524 F.2d at 870; see also Gibson, 781 F.2d at 1342 n.3 (noting that “[g]iven the availability of §
1983 relief against state agents who infringe First Amendment rights, it is hard to see why
Bivens relief should not be available to redress equivalent violations perpetrated by federal
agents”) (citing McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir.1983)).
Defendants nevertheless challenge whether the Bivens cause of action as recognized in
Dellums is still viable precedent, contending that “it is unclear if that decision would survive
Supreme Court scrutiny,” in light of its decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009). See
Mot. at 7. Specifically, they point to the following language in Iqbal:
Because implied causes of action are disfavored, the Court has
been reluctant to extend Bivens liability “to any new context or
new category of defendants.” [citations omitted] That reluctance
might well have disposed of respondent’s First Amendment claim
of religious discrimination. For while we have allowed a Bivens
action to redress a violation of the equal protection component of
the Due Process Clause of the Fifth Amendment, [citation
omitted], we have not found an implied damages remedy under the
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Free Exercise Clause. Indeed, we have declined to extend Bivens
to a claim sounding in the First Amendment.
Id. at 6 (quoting Iqbal, 556 U.S. at 675). Even if Defendants are correct in predicting the
Supreme Court’s response to questions not yet before it, this Court cannot accept its invitation to
depart from this Circuit’s binding precedent. See Critical Mass Energy Project v. Nuclear
Regulatory Comm’n, 975 F.2d 871, 876 (D.C. Cir. 1992) (en banc) (decisions of D.C. Circuit are
binding “unless and until overturned by the court en banc or by Higher Authority”) (citation
omitted); Owens–Ill., Inc. v. Aetna Cas. & Sur. Co., 597 F. Supp. 1515, 1520 (D.D.C. 1984)
(“The doctrine of stare decisis compels district courts to adhere to a decision of the Court of
Appeals of their Circuit until such time as the Court of Appeals or the Supreme Court of the
United States sees fit to overrule the decision.”). 2
2. Hartley’s Encounter with Wilfert
Having determined that Dellums recognized a Bivens action for First Amendment
violations in the context of public demonstrations, the Court must now decide whether the
conditions Wilfert placed on Hartley’s ability to protest – specifically, his statements to her that
she would have to provide him with her background data, would be added to the Secret Service
list, and would be “considered one of the crazies who protest in front of the White House,” see
Compl., ¶¶ 16-18 – rise to the level of such a violation. In conducting such an inquiry, the Court
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While recognizing a Bivens remedy for such violations, however, this Circuit has nonetheless cautioned:
That loss of an opportunity to demonstrate constitutes loss of First Amendment rights “in
their most pristine and classic form” does not mean, however, that monetary recompense
should be extravagant. The award must be proportional to the loss involved insofar as it
seeks to compensate intangible injuries. The jury cannot simply be set loose to work its
discretion informed only by platitudes about priceless rights.
Dellums, 566 F.2d at 195-96. Indeed, the court found error in the damages instructions that were given, as they “did
not require the jury to focus on the loss actually sustained by the plaintiffs.” Id. at 196. Having determined that “the
$7,500 judgment is totally out of proportion to any harm that has been suffered,” the court vacated that judgment
and remanded for a redetermination of First Amendment damages. Id. As this case proceeds, the Court trusts
Plaintiff will bear this point well in mind, particularly since she, unlike the Dellums demonstrators, was not even
arrested.
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will look to First Amendment decisions in the Section 1983 context that address whether certain
acts of intimidation sufficiently chill the speech of demonstrators or protesters.
As discussed above, Dellums makes clear that an actual arrest resulting in demonstrators’
“loss of an opportunity to demonstrate” clearly violates First Amendment rights “‘in their most
pristine and classic form.’” See 566 F.2d at 195 (citation omitted). Additionally, there is
substantial caselaw in which the threat of an arrest – even in the absence of an actual arrest – is
sufficient to chill speech, in violation of the First Amendment. See World Wide Street Preachers
Fellowship v. Town of Columbia, 591 F.3d 747, 752 (5th Cir. 2009) (Fifth Circuit recognized
that police officer had violated First Amendment rights of group of preachers when he threatened
them with arrest if they did not end their demonstration and disperse); Childs v. Dekalb Cnty.,
Ga., 286 F. App’x 687, 693-94 (11th Cir. 2008) (officer’s suppression of protesters’ speech – by
instructing them not to speak to individuals on sidewalk during protest of Honey Baked Ham –
violated First Amendment); Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896-99 (9th Cir.
2008) (constitutional violation when officer removed plaintiff from public sidewalk under threat
of arrest where she was collecting signatures for political organization); Cannon v. City and
Cnty. of Denver, 998 F.2d 867, 871 (10th Cir. 1993) (officer’s threat to protesters that they must
cover their signs or be arrested violated their constitutional rights); Lefemine v. Davis, 732 F.
Supp. 2d 614, 618, 624 (D.S.C. 2010) (police officer’s request that abortion protester put down
his signs – “if you want to stand out here on the corner, that’s fine, but we cannot have these
signs up because people do consider this is offensive material. . . . I’m asking you if you will
please take the signs down. If you do not take the signs down we will have no other choice
we’re gonna ticket you for breach of peace” – violated protester’s First Amendment rights),
overruled on other grounds, Lefemine v. Wideman, --- U.S. ---, 133 S. Ct. 9 (2012).
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In Lewis v. McCracken, 782 F. Supp. 2d 702 (S.D. Ind. 2011), a district court held that
the plaintiff pastor had established a constitutional violation of his First Amendment rights where
he was threatened with arrest by an officer for trespass if he did not move his staged sidewalk
demonstration to another location. Id. at 707-12. The court expressly stated that the threat alone
was sufficient to chill his First Amendment rights:
We note that Plaintiff was not actually arrested for protesting on
the sidewalk in front of the Casino. He was merely threatened
with arrest and, to avoid that consequence, he complied with [the
officer’s] demands by moving his protest across the street.
However, “a realistic threat of arrest is enough to chill First
Amendment rights,” creating a justiciable controversy.
Id. at 710 n.5 (quoting Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir.
2004)).
In contrast with the aforementioned plaintiffs, Hartley was not threatened with arrest here
if she continued speaking. Wilfert’s words, however, sought to intimidate her and to deter her
from speaking – the same effect as a threat of arrest. In Surita v. Hyde, 665 F.3d 860 (7th Cir.
2011), the Seventh Circuit noted:
The First Amendment prohibits threats of punishment designed to
discourage future protected speech. We apply an objective test:
whether the alleged conduct by the defendants would likely deter a
person of ordinary firmness from continuing to engage in protected
activity. Again, [the plaintiff] must show that her potential speech
was at least a motivating cause of [the defendant’s] threat of
punishment. . . . Taking the facts in [the plaintiff’s] favor . . . a
reasonable jury could answer “yes.”
Id. at 878-79 (citations omitted). The question before this Court, then, is whether Wilfert’s
interaction with Hartley “would likely deter a person of ordinary firmness from continuing to
engage in protected activity.”
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In so inquiring, the Court is bound by the allegations in the Complaint. While standing
on the White House sidewalk, Plaintiff alleges she was first approached by two uniformed Secret
Service officers on bicycles, Doe and an unknown male officer. See Compl., ¶¶ 4, 13-14. She
was asked “about why she was there, to which she provided full answers about her walk and her
underlying concerns over the unfair treatment of women in law enforcement. The officers
seemed interested, even asking what police department she had been in and wishing her luck,
and left after a brief exchange.” Id., ¶ 14. Hartley was later approached for a second time by
Doe, this time accompanied by Officer Wilfert, who proceeded to ask her a number of questions
about what she was doing on the sidewalk and “ominously” informed her that “if you want to
protest, you can . . . but we have rules . . . and we’re gonna have to call it in as a protest.” Id., ¶
16. He made it clear that if she intended to remain on the sidewalk discussing her concerns, she
would have to give “background data including name, date of birth and Social Security number,
fill out a card, and submit to questions.” Id., ¶ 17. Additionally, he informed her that this
information would be put into Secret Service records and advised her that “she would probably
choose to leave rather than be added to the Secret Service list and be ‘considered one of the
crazies who protest in front of the White House.’” Id., ¶ 18.
Hartley alleges that she abandoned her speech on the sidewalk because she was
intimidated by these statements. See id., ¶¶ 21, 28, 31 (“[Wilfert’s] statements and threats (that
she had to leave or submit to detailed inquiry and registration) in fact caused Ms. Hartley to end
her expression.”). Indeed, Wilfert himself appears to have acknowledged that he “‘may have
given her the indication that she had to leave the area.’” See id., ¶ 30. Facing two uniformed
Secret Service officers who had approached for a second encounter and who had cautioned her to
“leave rather than be added to the Secret Service list and be ‘considered one of the crazies . . . in
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front of the White House,’” Plaintiff’s acquiescence is hardly a manifestation of timidity. The
context here also matters: this took place in front of the White House in an age of heightened
security awareness. Given these circumstances, the Court finds Hartley’s retreat from the
sidewalk is consistent with the actions of a person of ordinary firmness.
Additionally, while a plaintiff’s actual response to a defendant’s conduct is not
dispositive, it “provides some evidence of the tendency of that conduct to chill First Amendment
activity.” Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 500 (4th
Cir. 2005). While Defendants contend that Hartley should have ignored Wilfert’s intimidation
because, as a “former law enforcement officer,” she should not be “intimidated by mere verbal
statements,” Mot. at 13, they cite no authority for their contention that Plaintiff should be held to
a “reasonable-former-law-enforcement-officer” standard and be expected to act differently in the
face of threats from uniformed Secret Service agents than any other individual. The Court thus
finds that Plaintiff’s allegations sufficiently state a claim for violation of First Amendment rights
under Dellums.
3. Privacy Act
Even if Defendants’ conduct here could normally give rise to a Bivens action, they claim
they hold a get-out-of-jail-free card: the Privacy Act. In other words, Defendants urge the Court
to disregard Dellums and deny a Bivens remedy where a comprehensive statutory scheme – here,
the Privacy Act – has been established to provide relief in a given area. See Mot. at 7.
Defendants characterize the claim here as “one for damages for violations of the Privacy Act,”
“[e]ven though pled as a Constitutional claim,” because “Plaintiff’s Complaint alleges that
Officers Wilfert and Doe sought personal information about her – her name, date of birth and
Social Security number – without authorization, resulting in harm to her for which she should
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receive damages.” Mot. at 11. Plaintiff staunchly contests this characterization of her claims,
noting that “the Privacy Act has nothing to do with this case,” as “Officer Wilfert was not
engaged in collecting information, he was engaged in intimidating plaintiff from exercising her
First Amendment rights.” Opp. at 3-4. The Court agrees: Defendants’ unduly technical
characterization of the conduct here would lead to the unjust result of protecting a violation of
constitutional rights simply because Defendants’ intimidation included a request for Hartley’s
personal information. The conduct here strays so far afield from the compass of the Privacy Act
that it cannot be said that Congress ever contemplated the sort of claim here being covered by
that statute.
The Privacy Act regulates the “‘collection, maintenance, use, and dissemination of
information’” about individuals by federal agencies. Doe v. Chao, 540 U.S. 614, 618 (2004)
(quoting 5 U.S.C. § 552(a)(5)). It “authorizes civil suits by individuals . . . whose Privacy Act
rights are infringed,” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1123 (D.C. Cir. 2007),
and provides for criminal penalties against federal officials who willfully disclose a record in
violation of the Act. 5 U.S.C. § 552a(i)(1). The Act “represents the compromise reached by
Congress between a citizen’s right to correct inaccurate records and the government’s need to
assemble critical information for responsible employment decisionmaking.” Dickson v. Office
of Pers. Mgmt., 828 F.2d 32, 40 (D.C. Cir. 1987). In furtherance of those goals, the Privacy Act
“gives agencies detailed instructions for managing their records and provides for various sorts of
civil relief to individuals aggrieved by failures on the Government’s part to comply with the
requirements.” Doe, 540 U.S. at 618. Put simply, the Act “safeguards the public from
unwarranted collection, maintenance, use and dissemination of personal information contained in
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agency records . . . by allowing an individual to participate in ensuring that his records are
accurate and properly used.” Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984).
Defendants go to great lengths to frame Hartley’s encounter with Wilfert here as lying in
this sphere, arguing that “the Privacy Act plainly constitutes a comprehensive statutory scheme
for addressing the types of private information government officials may gather from
individuals, and what remedies exist when private information has been gathered in violation of
the Act.” Mot. at 12. As support for this characterization, Defendants relate the suit here to the
claims in Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008), the celebrated leak case. See Mot. at
11. The facts here, however, are readily distinguishable.
In Wilson, the plaintiffs alleged harm from the improper disclosure of information
subject to the Privacy Act’s protections. Specifically, Wilson’s claims stemmed from the
publication of his wife’s CIA employment in an article published in several newspapers; the
publication was the result of a disclosure by the Deputy Secretary of State of information
contained in State Department records. 535 F.3d at 707. As this Circuit observed,
Each claim in the Wilson complaint is based on this disclosure of
Privacy Act protected information. In Count One, the Wilsons
allege that Joseph Wilson’s First Amendment right to free speech
was violated when the information was disclosed in retaliation for
his speech. . . . Thus, each Constitutional claim, whether pled in
terms of privacy, property, due process, or the First Amendment, is
a claim alleging damages from the improper disclosure of
information covered by the Privacy Act.
Id. The claims here, in contrast, have nothing to do with disclosure of information.
In arguing that Plaintiff’s claims are nonetheless covered by the Act, Defendants rely on
language in the statute requiring that an agency that maintains a system of records shall
“maintain no record describing how any individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by the individual about whom the record is
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maintained or unless pertinent to and within the scope of an authorized law enforcement
activity . . . .” 5 U.S.C. § 552a(e)(7). As the Seventh Circuit explained in Bassiouni v. F.B.I.,
436 F.3d 712 (7th Cir. 2006):
[I]n enacting § 552a, Congress was motivated by a general concern
with the potential for abuse if the Government is allowed to collect
political dossiers about American citizens. Second, Congress was
concerned that overly restrictive limitations on the Government’s
ability to collect criminal intelligence would hamper legitimate law
enforcement efforts. Third, Congress’ concern about restricting
law enforcement was highest in areas of agency activity affecting
the security of our Nation.
Id. at 718.
Wilfert’s actions here did not involve the sort of collection of information contemplated
by the Act; instead, his words were merely a threat to intimidate Hartley from continuing in her
speech, just as “I will arrest you if you continue to protest” or “I will take a picture of you for my
book of crazy protesters” would deter a person from speaking. As Plaintiff observes:
That the nature of Officer Wilfert’s threat was “if you want to
protest here we’ll have to put you on our list of White House
crazies” does not make this a case about collecting information any
more than a threat of “if you want to protest here you’ll have to
remove your clothes” would make it a case about indecent
exposure. Officer Wilfert was not engaged in collecting
information, he was engaged in intimidating plaintiff from
exercising her First Amendment rights.
Opp. at 4.
The Court thus finds that the Privacy Act does not foreclose Hartley’s First Amendment
claim here.
B. Qualified Immunity
Defendants last contend that even if this Court were to find Plaintiff’s speech to be
improperly infringed, her claim would nonetheless be barred by qualified immunity. “The
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doctrine of qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine “gives government
officials breathing room to make reasonable but mistaken judgments” and “protects ‘all but the
plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, --- U.S. ---,
131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
To show that a government official is not protected by qualified immunity, a plaintiff
must establish that (1) the defendant’s conduct violated the Constitution, and (2) the
constitutional right that was violated was sufficiently established such that a reasonable official
would have known the conduct violated the Constitution. Pearson, 555 U.S. at 232. For the
reasons set forth Section III(A)(1)-(2), supra, the Court finds that Plaintiff has alleged a
constitutional violation. It must now determine whether that right was clearly established. To
reject an official’s claim of qualified immunity, “the unlawfulness” of his action must be
apparent “in the light of pre-existing law.” Atherton v. Dist. of Columbia Office of Mayor, 567
F.3d 672, 689-90 (D.C. Cir. 2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))
(quotation marks omitted).
“An official enjoys protection from a lawsuit where [his] conduct is objectively
reasonable in light of existing law. Conversely, an official is not shielded where he could be
expected to know that certain conduct would violate statutory or constitutional rights.” Brown v.
Fogle, 819 F. Supp. 2d 23, 28-29 (D.D.C. 2011) (quoting Farmer v. Moritsugu, 163 F.3d 610,
613 (D.C. Cir. 1998) (quotation marks omitted)). The operation of the “clearly established”
standard “depends substantially upon the level of generality at which the relevant ‘legal rule’ is
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to be identified.” Anderson, 483 U.S. at 639. While the contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right, id. at 640, this does “not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.” Ashcroft, 131 S.Ct. at 2083; see
Reichle v. Howards, --- U.S. ---, 132 S. Ct. 2088, 2093 (2012).
Defendants seek to define the legal rule here very specifically. See Mot. at 19-20
(“Defendants are unaware of any clearly established authority holding that the First Amendment
is violated if a law enforcement officer asks a former law enforcement officer for personal,
identifying information in connection with the former law enforcement officer’s exercise of First
Amendment activities in a sensitive place such as the White House sidewalk.”). Plaintiffs, in
contrast, frame the right at a higher level of generality. See Opp. at 7 (characterizing right in
question as Hartley’s “right to stand on the White House sidewalk with her message and speak
with passersby” without a permit). Just as in Section III(A)(2), supra, Defendants cite no
authority for their cabined view that Hartley’s First Amendment rights as a former law-
enforcement officer differ from those of an ordinary citizen. The constitutional right in question
should be defined as an ordinary person’s expressing her views while standing on the public
sidewalk in front of the White House, which Defendants appear to acknowledge is a public
forum. See Reply at 13. Such a right was clearly established in 2009.
In Childs, upon very similar facts, the Eleventh Circuit found that the defendants were
not entitled to qualified immunity, pointing to “many” decisions that
have put police officers on notice for decades that protestors
present on public property have a First Amendment right to
peacefully express their views, in the absence of narrowly tailored
ordinances restricting the time, place, or manner of the speech.
Thus, this is one of those cases where “a general constitutional rule
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already identified in the decisional law [applies] with obvious
clarity to the specific conduct in question.”
286 F. App’x at 693-94 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)); see also
Cannon, 998 F.2d at 873-76 (finding right of plaintiff protesters to picket on public sidewalk in
front of abortion clinic with signs was clearly established constitutional right at time of 1988
arrests, but ultimately remanding to determine whether defendants could nonetheless claim
immunity under “extraordinary circumstances” exception).
Indeed, Defendants’ assertion that “no reasonable officer would know that a mere request
for personal identifying information would cause a former law enforcement officer to feel the
need to cease engaging in First Amendment activities after having been told that she could
continue such activity” is belied by Wilfert’s own statements. See Mot. at 21. Pursuant to the
internal investigation that was conducted, Wilfert “acknowledged that he ‘may have given her
the indication that she had to leave the area’ which was a mistake and thus he should have
handled the incident ‘in a different manner,’ ‘used better judgment,’ and ‘chosen words more
suitable.’” Compl., ¶ 30.
Because Hartley has sufficiently alleged that Defendants knowingly deprived her of
clearly established constitutional rights, the Court cannot conclude at this stage of the litigation
that they are entitled to qualified immunity from suit.
IV. Conclusion
For the aforementioned reasons, the Court will deny Defendants’ Motion to Dismiss. A
separate Order consistent with this Opinion will be issued this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 24, 2013
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