The opinion of the court was delivered by: LARIMER
Plaintiff, Arthur S. Bechhoefer, commenced this action under the Privacy Act ("the Act"), 5 U.S.C. § 552a, and the First Amendment to the United States Constitution. Defendants are the Drug Enforcement Administration ("DEA") of the United States Department of Justice, and two DEA agents, Robert Nearing and Jeffrey Gelina. Defendants have moved for summary judgment, and plaintiff has cross-moved for partial summary judgment on the issue of liability on his claim against the DEA.
Plaintiff, who resides in Yates County, New York, belongs to a group known as the Bluff Point Association, Inc., and to an affiliated group, Friends of Keuka Lake. These groups are concerned with land use in the Keuka Lake area. As an officer of these groups, plaintiff alleges that part of his duties relates to crime and security in the area. He states that occasionally local residents have contacted him to report suspected drug activities in the area.
Plaintiff agreed to send Gelina a letter, but he alleges that he did so only after receiving Gelina's assurances that the letter would remain confidential. Gelina alleges that he told plaintiff that he would try to keep the letter confidential, but that he could not guarantee its confidentiality.
Plaintiff did send a letter to Gelina. The letter, which contained the heading, "CONFIDENTIAL," named certain people suspected of involvement in drug trafficking. Some of the persons mentioned were members of the Yates County Sheriff's Department ("the Sheriff's Department"). Plaintiff stated in the letter that "the Sheriff's Department cannot be trusted to provide any security, nor can its members be considered reliable." Defendants' Motion Ex. 2.
At some point, Michael J. Christensen, an investigator with the Sheriff's Department, became aware of the letter. Christensen was one of the persons named in the letter. Although the letter did not explicitly accuse him of any wrongdoing, plaintiff wrote that Christensen had been the "right hand man" of a former Undersheriff, who plaintiff stated "may be involved in the distribution of drugs ..." Defendants' Motion Ex. 2.
Nearing and Gelina had arranged to meet plaintiff to discuss his allegations, but for some reason the meeting did not occur. Eventually plaintiff became dissatisfied with the way that Nearing and Gelina were handling the matter and refused to meet with them unless they sent him their "credentials," which they declined to do. Bechhoefer Affidavit Ex. C.
Nearing and Gelina decided not to pursue the matter any further. They did, however, send a copy of the letter to the Sheriff's Office. Gelina alleges that he did so at the request of the Sheriff's Office and at the direction of DEA's then-Resident Agent in Charge, James Kenney. Christensen states in a document filed in a related state court action, that Nearing faxed it to him on August 5, 1993. He states that he called the DEA office that day and spoke to Gelina. Christensen asked Gelina if he had ever gotten the letter and Gelina stated that he had. Christensen left a message for Nearing to call him, which Nearing did shortly thereafter. Christensen asked Nearing about the letter, and Nearing stated that it was from Bechhoefer. Christensen asked if he could have a copy of the letter, and Nearing promised to fax him a copy.
As a result of these events, plaintiff was later prosecuted by the Yates County District Attorney for making false statements. The charges were eventually withdrawn. Plaintiff also alleges that a separate criminal prosecution was brought against him, which resulted in his acquittal after a jury trial. He has also been sued, apparently for defamation, in three actions in state court.
Based on these allegations, plaintiff asserts two causes of action: first, a claim against the DEA under the Privacy Act, and, second, a claim against Gelina and Nearing under the First Amendment.