The Tenuous Enforceability of Release-Dismissal Agreements, by Andrew B. Adair, Esq.

To prevent or reduce exposure to civil lawsuits, police officers, prosecutors and code enforcement officials sometimes negotiate agreements to dismiss charges in exchange for the release of potential rights to bring a civil rights lawsuit.  While such a release sounds appealing, it is important for attorneys and claims professionals defending civil rights claims to understand that these “release-dismissal agreements” are not always enforceable.  This article will explore the art of crafting a successful and binding release-dismissal agreement.

Typically, the enforceability of a release-dismissal agreement is raised in a civil lawsuit after criminal charges have been dismissed and the criminal defendant has repudiated the agreement by filing a civil rights lawsuit pursuant to 42 U.S.C. § 1983 against the officers who arrested him.  In such an instance, counsel defending the police in the subsequent civil suit will raise the affirmative defense of release seeking dismissal of the complaint.  There is no per se public policy which prohibits release-dismissal agreements. The validity of a release-dismissal agreement waiving potential § 1983 claims is reviewed on a case-by-case basis.  Town of Newton v. Rumery, 480 U.S. 386, 392 (1987). 

An enforceable a release-dismissal agreement must be executed voluntarily, free from prosecutorial misconduct, and must not offend the public interest. Cain v. Darby Borough, 7 F.3d 377, 380 (3d Cir. 1993).  Thus, while these agreements may be enforced, the courts in the Third Circuit look at them very closely to assure that they do not violate the public interest. 

Where a defendant in a civil rights lawsuit raises the affirmative defense of release, the defense has the burden of showing voluntariness.  Livingstone v. North Belle Vernon Borough, 12 F.3d 1205, 1211 (3d Cir. 1993).  If the release is oral rather than written, voluntariness must be proved by clear and convincing evidence.  Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 534-36 (3d Cir. 1996).  Presumably, with a written release-dismissal agreement voluntariness must be established by the “preponderance of the evidence” standard.  However, this issue has not been fully adjudicated.  See Livingstone, 91 F.3d at 536.  Since there are potentially different standards of review, a prosecutor should always reduce a release-dismissal agreement to writing. 

The issue of voluntariness is fact specific.  Livingstone, 12 F.3d at 1210. Because the question whether the plaintiff made a “deliberate, informed and voluntary waiver” presents issues of witness credibility concerning the plaintiff’s state of mind, the Third Circuit directs that the question should be submitted to a jury. Livingstone, 12 F.3d at 1215 n.9.  While the Third Circuit does not limit the factors that a jury may consider, the court has identified seven factors which may demonstrate voluntariness: (1) the words of the written release signed by the plaintiff; (2) whether the plaintiff was in custody at the time he entered into the release; (3) whether plaintiff’s background and experience helped him to understand the terms of the release; (4) whether plaintiff was represented by a lawyer, and if so, whether the plaintiff’s lawyer wrote the release; (5) whether plaintiff agreed to the release immediately or whether plaintiff took time to think about it; (6) whether plaintiff expressed any unwillingness to enter into the release; and (7) whether the terms of the release were clear.  See Third Circuit Model Jury Instruction 4.7.3. 

Not only must the civil rights defendant show voluntariness, the defense must also show the balance of public interests favors enforcement.  Cain, 7 F.3d at 381.  The Third Circuit recognizes that while dismissal of a criminal case may serve the public interest, a civil rights lawsuit pursuant to 42 U.S.C. § 1983 can also serve a public interest by exposing and deterring official misconduct.  Livingstone, 91 F.3d at 528-29.  Accordingly, these countervailing public interests must be weighed against each other.  The standard for determining whether a release is in the public interest is an objective standard, based upon the facts known to the prosecutor when the agreement was reached. Cain, 7 F.3d at 381.  However, there is also a subjective component, as the public interest reason proffered by the prosecutor must be the prosecutor’s actual reason for seeking the release. Id.  The objective inquiry (whether there existed a valid public interest in the release) is for the court, but the subjective inquiry (whether that interest was the prosecutor’s actual reason) is for the jury.  Livingstone, 12 F.3d at 1215.

The Third Circuit has cautioned that protecting public officials from civil suits may provide a valid public interest and justify the enforcement of a release-dismissal agreement.  However, there first must be a case-specific showing that the released civil rights claims appeared to be marginal or frivolous at the time the agreement was made and that the prosecutor was in fact motivated by this reason.  Cain, 7 F.3d at 383.  Whether the claims appeared to be marginal or frivolous must be assessed on the basis of the information that the prosecutor “knew or should have known” at the time.  Livingstone, 91 F.3d at 532. 
   
In summary, the fact that a criminal defendant enters into an agreement to release his arresting officers from civil liability in exchange for a dismissal of criminal charges does not guarantee that the release will be enforced.  This does not mean that release-dismissal agreements do not have value.  To the contrary, in many instances the agreement will deter a civil suit because the criminal defendant will be satisfied with the dismissal of criminal charges.  Even if a police officer must litigate the affirmative defense of release in a subsequent civil lawsuit, the issue may be used to paint the plaintiff as untrustworthy because he has repudiated an agreement that he negotiated in good faith.  The important lesson to be taken from this discussion is that civil rights defense attorneys should become involved at the earliest possible stage and assist local prosecutors with crafting a suitable release-dismissal agreement. 

For further information regarding release-dismissal agreements, please contact Andrew B. Adair at abadair@dmvlawfirm.com.