United States District Court, District of Columbia
Debra L. HARTLEY, Plaintiff,
Officer WILFERT, et al., Defendants.
[Copyrighted Material Omitted]
Arthur B. Spitzer, Frederick V. Mulhauser, American Civil Liberties Union of the Nation's Capital, Washington, DC, for Plaintiff.
Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendants.
JAMES E. BOASBERG, District Judge.
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 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.
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 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.
II. Legal Standard
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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 106 S.Ct. 2932, 92 L.Ed.2d 209 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937 (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, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (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 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).
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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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 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 ...