Hartley v. Wilfert
918 F. Supp. 2d 45
D.D.C.2013Background
- Hartley walked 225 miles from Pennsylvania to the White House to protest sex discrimination in law enforcement.
- She wore a vest reading “Walking to the White House” and sought to engage the public and press about her concerns.
- Two uniformed Secret Service officers (Doe and Wilfert) confronted Hartley on the White House sidewalk; Wilfert demanded background data and registration if she continued speaking.
- Hartley was told that information would be recorded in Secret Service files and that she might be added to a “Secret Service list” and labeled as a protester, encouraging her to leave.
- Hartley ultimately abandoned her speech after these intimidation threats; she had committed no crime at the time.
- Hartley filed suit alleging a violation of her First Amendment rights; Defendants moved to dismiss, arguing no Bivens action and qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dellums permits a Bivens action for First Amendment rights at issue | Hartley relies on Dellums to allow a Bivens claim for First Amendment violations | Defendants contend Bivens is not available where a comprehensive Privacy Act remedy exists | Bivens claim is available for First Amendment rights in this context |
| Whether Wilfert’s conduct violated the First Amendment | Hartley alleges intimidation that chilled speech on a public sidewalk | Hartley should have tolerated intimidation given her former law enforcement status | Hartley stated a cognizable First Amendment claim; conduct could chill protected speech |
| Whether the Privacy Act forecloses a Bivens claim or public-rights remedy | Privacy Act does not cover intimidation of speech, not collection of information | Privacy Act provides exclusive remedy for privacy-related harms | Privacy Act does not foreclose Hartley’s First Amendment claim; Bivens remains viable |
Key Cases Cited
- Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977) (recognizes Bivens-like action for First Amendment violations inter alia involving demonstrations)
- Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975) (extending Bivens to First Amendment violations by federal officials)
- Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986) (Bivens-like relief for First Amendment violations by federal agents)
- World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747 (5th Cir. 2009) (threat of arrest can chill speech; speech in public fora protected)
- Childs v. Dekalb Cnty., Ga., 286 F. App’x 687 (11th Cir. 2008) (threat of arrest or disruption of protest violates First Amendment rights)
- Cannon v. City and Cnty. of Denver, 998 F.2d 867 (10th Cir. 1993) (public sidewalk protest rights; time/place/manner considerations)