Anthony H. Dye v. William B. Wargo, Jr., K-9 Named Frei, and City of Elkhart, Indiana
253 F.3d 296
7th Cir.
2001
Check Treatment
Docket

*2 stop sign; Dye ran a says that he was EASTERBROOK, Before MANION, all obeying traffic Wargo says laws. P. WOOD, DIANE Circuit Judges. activated siren as well as his flash- ing lights; Dye hearing denies a siren. EASTERBROOK, Judge. Circuit Dye asserts that he fled because the Elk- Anthony Dye injured attempt- while police hart have a reputation for mistreat- ing to Elkhart, flee from the police ing young black suspects; Elkhart denies Indiana. capture, After his Dye pleaded (An that it such reputation. has alterna- the other it there.” One make tried to Dye hoped is hypothesis

tive lawyer His perjury. house stories in his mother’s gun hide the could to lie entitled Dye was possession contends penalty and avoid the stiff judge ac- flight to ensure for his state court But the reason by a felon. *3 and explanation, bargain, that irrelevant, and the favorable cepted legally true, justification.) disregard his earlier therefore if is even we should after halt- position Frei released That is not contends sworn statements. does, attack a second can, did not flight and tolerate. ing system his any judicial Stewart, to be Dye refused handcuffed time until 198 See, v. e.g., States United feet; Dye contends to his sprang (7th Cir.1999); and Hugi v. United F.3d 984 got that he Cir.1999). and (7th reversed sequence was 378, States, 381 164 F.3d against Frei’s himself to defend up back Sys- Policy Management v. Cleveland Cf. that he Dye asserts attack. unprovoked 806, 795, 119 Corp., 526 U.S. S.Ct. tems to Wargo refused at Frei after shot (1999) (collecting 1597, 143 L.Ed.2d 966 responds dog; Wargo his call off that a holding every circuit cases Ac- Dye’s target. rather than Frei during a given answers litigant is bound injuries most serious Dye, his cording contra- despite a affidavit deposition, later up, given he received after were answers, unless there is those dicting again lying away, was gun thrown deposition why the valid reason legally by a helpless down, rendered and had been superseded). Although may be answers had the bullet; Wargo, Dye according when statements observes use it trying in his hand and gun anything contradict guilty do not pleading If his last wounds. he received when case about in this federal has asserted he correct, injuries at these is Dye’s version encounter, few moments the last 1983, § under least would be actionable be believed these why statements should suspect is passive shooting a disarmed story questiona- is so of his when the rest in viola- excessive force example of a clear credit statements can court How ble? But if amendment. the fourth tion of who has litigant such made correct, Dye has no Wargo’s version (indeed, willingness asserts proclaimed complaint. valid entitlement) lie oath whenever under an has the statements Some of But we need serves interests? deceit are in- litigation in this under oath made issue, Dye cannot pursue not because made under he with consistent statements to retract his he entitled prevail even example, Dye’s For in state court. oath testimony. prior fired at that he never assertion current of the three defendants do Two the affirmative with Wargo is inconsistent litigation In in this case. belong not you asked: “And gave when answer vicariously municipality is 1983 by the Policeman shot at an Elkhart torts of its constitutional for the liable Wargo, current Jr.?” His name of William only for the answerable employees but is his mother’s fled toward assertion policies. See Monell of its consequences he feared violence only because home Services, 436 U.S. Department Social police is inconsistent hands of the (1978). 2018, 611 658, 56 L.Ed.2d 98 S.Ct. judge: state this statement made shooting policy of not have a does Elkhart I had a knowing at the by me time “And Although they down. suspects when know, tried to you I gun my possession, proper did not that Elkhart Dye contends pretty I being that was him. And elude Frei, Wargo or shortcom- house, know, ly train either you my close to mother’s

299 ings of this kind do not establish direct law. See Arizonans English v. for Official Arizona, liability, 43, 69, 1055, because the Constitution does not 520 U.S. 117 S.Ct. (1997). require municipalities to 137 L.Ed.2d 170 training conduct Under the Dictio Act, nary 1,§ 1 programs. U.S.C. “the training ‘person’ Poor is instead a words corporations, ‘whoever’include showing compa means of intent for constitu those nies, associations, firms, matters, partnerships, tional torts soci where intent see Col eties, joint companies, stock as well as 115, Heights, lins v. Harker 122- U.S. individuals”, dogs list, but are not on this (1992); 117 L.Ed.2d 261 they whether or not act under color of Harris, 378, 388, Canton v. 489 U.S. state law. Cf. Miles v. Augusta City (1988), S.Ct. L.Ed.2d Council, (11th 710 F.2d 1544 n. 5 *4 excessive force under the fourth amend- Cir.1983) (a cat is “person” not a pur ment is not one of those constitutional poses amendment). of the fourteenth A Connor, torts. See Graham v. 490 U.S. against suit dog poses a a host of other 386, 1865, 109 S.Ct. 104 L.Ed.2d 443 problems. Was Frei process? served with (1989); Lester v. Chicago, 830 F.2d 706 Did retain lawyer as his Lynn E. Kala- (7th Cir.1987). Proof of failure to train maros, purports represent who all three officers could be used to demonstrate that defendants? Was Frei offered (hence municipality approves has a self-representation under 28 U.S.C. of) policy improper conduct training § 1654? What relief does seek from a could extirpate. Such a claim in a case dog awards, perhaps? Could Frei —Frei’s like depend this would on establishing that claim qualified immunity? If a reasonable City’s policymakers po knew person in the position defendant’s would using objectively lice were unreasonable not have understood that what he was force in apprehending suspects, yet did doing Constitution, violated the damages nothing Canton, problem. solve the See Creigh unavailable. See Anderson v. 8, 1197; 489 n. U.S. 388 109 S.Ct. Lani ton, 635, 3034, 483 U.S. 107 S.Ct. 97 Crest, gan v. East Hazel 110 F.3d (1987). L.Ed.2d 523 Must we then ask (7th Cir.1997); 478-79 Sledd Lindsay, v. whether a dog reasonable position Frei’s (7th Cir.1996). 102 F.3d 282 Dye has not should have understood that he was violat any offered evidence that use of excessive ing Dye’s rights? constitutional One could Elkhart, force is common has indeed not half pursuing understand Frei because he produced prior evidence even one inci party is not a to the release. But at oral Tuttle, City dent. Cf. Oklahoma v. 471 argument, why when asked he had named 808, 824, U.S. 85 L.Ed.2d defendant, dog a as a Dye’s lawyer replied (1985) (“considerably 791 proof more than “employee” deemed Frei an single incident necessary [a] will be ... City hoping and was to hold the vicar establish requisite both the fault on the iously liable only for his deeds. That not part of municipality, and the causal ignores any Monell but also scotches effort ‘policy’ connection between the and the to skirt the release —for that document deprivation”). unconstitutional Thus the covers all of City’s employees. (Any City cannot be theory held liable on the way, treating dog “employee” a as an lack of more training extensive would raise thorny issues under the Fair goWar or Frei a policy using evinces Labor Standards Act. Should get Frei constitutionally improper force. time-and-a-half for overtime? Cf. Brock v. (6th § As for Frei: applies only Cincinnati, Cir.2001).) 1983 236 F.3d 793 “person” to a considered, who under things acts color of state All it is best to follow (including Although he lacks assets dog him. and hold that Dictionary Act insurance) at- litigation that would have made suit proper

not a defendant (or against tractive, claims knew could have (Dye’s § state-law he also better; requires lawyer) liability Indiana from his Frei fare learned owner, (or dog’s to sue the dog police bite kill a officer victim of account of efforts to Tolle, rel. ex Akers dog. Burgin discharged not be police dog) could even (Ind.App.1986).) 523(a)(6). N.E.2d bankruptcy. See U.S.C. enabled to ensure The mutual release Wargo, claim This leaves at the end get a fresh start is barred court held as the district which This release is not imprisonment. of his “any or Federal State by Dye’s release irrational act that apparently the sort of kind what of action claim or cause to overcome. court should endeavor of the arrest and arising ... out soever Dye, H. on or about Anthony shooting of get mileage from the Dye tries to uncondi The release is 1997.” March signature fact that his is the tional, com language were not Yet, pointed judge release. as the district pages an additional two prehensive enough out, requires sig the statute of frauds loophole. every possible go on to close *5 sought to be only party nature of the release, deny that the taken Dye does not Services, Inc. v. Consolidation bound. (and value, also re this suit at face bars (7th N.A., KeyBank 185 F.3d 819-20 for him reimburse defendants quires to Cir.1999) (Indiana law); v. Du Mehling fees). Nonetheless, insists, Dye legal their Ass’n, County Co-Op Farm Bureau bois subject an unstated condi is to the release Inc., (Ind.App.1992). Cf. In 601 N.E.2d bargain superi- that he obtain a tion: (7th Co., 227 Supply re F.3d 928 Cir. Vic The district one he entered. or the argument this foreclosed 2000). rightly court held rule, parol evidence see Kruse by Indiana’s Dye to show is that What needed Casualty Aetna & Auction Co. v. Classic release, not City agree the did not to the Co., (Ind.App Surety 511 N.E.2d sign simply City’s agents that the failed .1987), that one principle as well as the is a mutual the release. This document expectations do not af party’s unilateral release, waiver, its ef not unilateral so meaning. fect a contract’s See Ruff depends City’s assent. fectiveness System Behavioral Health Charter City agree, did not Dye asserts the Indiana, Inc., 699 N.E.2d

Northwest only evidence he offers is the but Dye not (Ind.App.1998). 1173-74 does just missing signature, which takes us expectation conveyed contend Dye back to the statute of frauds. would lawyers. Instead City any to the of its if, good point example, for his law have a in the release pointing ambiguity to an release, it, Dye signed yer drafted the understanding mutual parties’ or to the to the counsel then sent document that, effect, Dye insists because he was its ignored proposal. Such a City, which seriously injured, must be some es there demonstrate an offer but sequence would cape nothing hatch. This is but wishful actually hap acceptance. not an What pitch have to not thinking; we would different, however. pened significantly body also the of Indiana’s the release but Dye’s lawyer plea negotiations During the accept contract law out the window of a release on the placed prospect Dye gave up to sue view. prosecu bargaining chip. table as City but received return any responded that he would not offer by Wargo City and the not to sue tor promise claim, plaintiff’s all of Dye’s for release of merits of the concession Still, expense, claims. the insistence associated even the state actors civil passed attorney, prosecutor Dye’s prevailed the end. That would make it (if mutual release on to Elkhart’s idea of a impossible) parties harder legal depart- Elkhart’s City Attorney. litigation. settle their differences without release, it prepared then which ment settlement, get did not cash for his Dye’s lawyer through the transmitted to (avoidance he did but receive value prosecutor’s signed office. the docu- him might hang pris- debt over after exactly as tendered and handed ment on); here, however, legal position prosecutor, who returned it to back to the apply even to who persons executed that, City. although Thus we know monetary in exchange releases settle- idea, City found it brought up making ments. It is difficult to see how every acceptable approved its word. help releases could unenforceable other counteroffer; not make a did persons Dye’s position might very who City signed the document the tendered. disputes, only much want to resolve their Agreement (Dye has been established. by municipalities to be rebuffed who would City that the has failed to does not contend unwilling agreements to enter that their bargain, or that the keep part its adversaries could choose to discard. See Attorney authority actual lacks Atchison, Topeka Pierce v. & Santa Fe Elk- negotiate agreements of this kind on (7th Cir.1995). Ry., 65 F.3d 562 It behalf.) hart’s equally why, plaintiff difficult to see if a under Indiana Thus the release is valid litigation may pittance settle for a Still, Dye’s extinguishes law and claims. file, person may once a suit is on the same we must consider contention *6 pittance initiating not settle for a before the contract is “unenforceable [because] litigation. the interest in its enforcement is out- Newton, only Dye the case on which a weighed the circumstances [feder- relies, aid, him for it a offers little enforced public harmed policy al] enforcement liability § release of under 1983. See also agreement.” Rumery, the Newton v. 480 D., Evans v. 475 106 S.Ct. U.S. Jeff 386, 392, 1187, 94 U.S. 107 S.Ct. L.Ed.2d (1986) may (plaintiff 89 L.Ed.2d 747 (1987). Dye’s argu- premise attorneys’ under 42 agree forego to fees events is cor- ment is his version of 1988). rejects § conten- Newton a U.S.C. prevents police rect. Federal law given for the tion that releases getting shooting helpless off scot free after always charges dismissal of criminal suspects, Dye Dye’s position ig- contends. All as- unenforceable. of the Justices point a is to nores the release —which ordinary mutual sumed that an release story is to avoid the need to decide whose enforced; damages liability could be just cannot assume that be believed. We in Newton was question on the table now, truth Dye telling both charges (at using whether criminal to obtain (now) Dye himself the time liability the state give release of civil would It guilty plea) of his have dissembled. leverage. much The Justices who dis- too necessary to hold a trial to deter- would be a concern that expressed sented in Newton story current is cor- mine whether charging use their dis- prosecutors would such a trial would rect. Yet hold be to induce settlement. Even weak liability cretion say in effect that no release of enforced, a risk of such criminal accusation creates 1983 can be for a re- of official miscon- hearing magnitude never avert a that victims lease would serve the interests of right to seek Waivers and releases their may duct surrender is more parties: to avoid small a waivable in order both civil redress That is a lengthy imprisonment. than is a non-waiva- chance of valuable to its holder than concern right may much more substantial right, for the waivable ble prosecu- Dye advances—for argument side for a benefit traded to other charges not dismiss the only tor not did highly than the the holder values more him declared that the civil but also See, e.g., States right’s exercise. United into account would not be taken settlement (7th Cir.1998). Krilich, 159 F.3d 1020 v. bargaining. Because plea criminal duress, amounting Circumstances held that even a Newton any con- kind of threats that undermine bargain is enforce- release-for-dismissal tract, preclude enforcing a release would able, simple mutual release of civil liabili- Dye as well. But does not contend an ty poses problems. no And by improper extracted his release was mutual release. contends ordinary involuntary. threats or was otherwise Re- “understanding” his lawyer) (through call that himself for the release would receive consideration release, persisting proposed first after plea agreement, of a in the form better liability prosecutor said that civil but, discussing the as we observed when plea not be taken into account bar- problem, that assertion is parol-evidence gaining process. par- Federal law allows up by backed written evidence—and damages, ties to waive not claims for up we add that it is not backed even now Newton, rights as in but also the defend City’s by parol evidence about what the (as Dye pleading themselves did when agents lawyer. said to or his Free- deci- guilty) appeal and to from adverse floating “understandings” are irrelevant to Mezzanatto, sions. United States v. See contract, or federal. If the law of state 513 U.S. 130 L.Ed.2d prosecutor Dye contended that said (1995); Wenger, United States something give rise to this “understand- (7th Cir.1995). keep F.3d 280 must ing” might then there be an issue worth suit, promise just to refrain from civil self-generated debating; but beliefs have guilty precludes most avenues legal consequences. *7 Bousley v. attacking his conviction. See cited, and have not Dye has we States, 614, 118 United 523 U.S. S.Ct. found, any holding that a mutual re- case (1998); 140 L.Ed.2d 828 United un- liability lease of civil is unenforceable Broce, States v. 488 U.S. der federal law. Federal courts have not (1989); Mabry v. 102 L.Ed.2d 927 view, Fiss, the see Owen M. embraced Johnson, 504, 508-09, 104 U.S. S.Ct. Settlement, Against 93 Yale L.J. 1073 (1984). 2543, 81 L.Ed.2d 437 (1984), that settlement interferes with law, judges’ ability right to declare the Affirmed act as wrongs, and otherwise ombudsmen.

Litigation offers a means to vindicate WOOD, Judge, DIANE P. Circuit claims, compulsion. is not but entitlement dissenting part concurring part do not Section 1983 and associated statutes judgment. in the employ approach the of the Fair Labor majority agree and I Both the Offi- Act and handful of other Standards the Elkhart, Indiana Wargo, cer William private federal laws that either foreclose force, constitutionally excessive supervision by police used require settlements or their 216(c). Dye, § take public against Anthony force when we official. See U.S.C. light Dye’s right facts in the most favor- ate indifference to the contested disagreement centers on Fourth Amendment Dye. able to Our to be free from unrea- Dye signed, of the release legal effect sonable seizures. majority thinks lets both the which the § Against A. 1983 Claims Wargo employee

City of Elkhart and its off the give hook. I believe this conclusion fails to majority reported, As the has the events proper surrounding to the facts effect triggered began lawsuit around Supreme of the release and the execution 2:30 a.m. on March was way we are Court’s instructions about driving his brother’s Chevrolet Corvette I to assess such documents. therefore Avenue, on Indiana City within the of Elk- respectfully respect dissent with to the hart, headed toward his mother’s house. against Wargo. case obeying speed He was limit and all other traffic laws when he observed that I car, being police he was followed itself, which turned out to driven turning to the release Officer Before Wargo. Dye reached the necessary give it is a somewhat intersection believe and, Sterling Indiana Avenue and more detailed account of the facts of the Avenue laws, compliance still in all traffic Dye Wargo. I do encounter between stop. came to a full I think He then turned so because excessive force Nonetheless, onto Sterling than Avenue. after claim extends to more conduct turn, parts police made the he saw that the recognize, because majority’s flashing car had turned on its overhead account either omit critical lights. Dye facts favorable to facts realized that the officer was dwell on over, signaling pull to him to peripheral, analy- but he contin- and because the driving short-sighted hope ued sis of the release must be undertaken with might dispute be able to reach his mother’s the context of mind. Natu- get police house and rally, my presents account of the inside before the offi- facts stop cer could him. light Dye, them in the most favorable to His motivation was simple: Dye non-moving party. convicted felon and he carrying handgun. an unlicensed 9mm lawsuit, In named as pursuit, Dye now in With turned Elkhart, Wargo, defendants house, alley into the behind his mother’s Frei, (mysteriously) Wargo’s police yard, pulled drove until he came to her dog. Only the claims the first two stopped the car. (The require defendants our attention. majority hardly halt, point needs to belabor the The minute his car came to a that, opened looking no matter how much of an animal the door and without back *8 be, may dog Wargo, lover one at this time is not made a dash for the who house. suit). him, § “person” pulled Dye to a amenable behind saw start Dye running asserted several excessive force toward the house and released against Wargo, stemming Dye stop, Wargo claims all from Frei. never ordered to early morning Dye the confrontation in the nor did he warn that he was about to Dye Dye’s dog. hours of March 1997. claim release the Frei overtook before Dye Elkhart is that his reached the house. As he was trained do, injuries adequate- Dye’s leg resulted from its failure to Frei bit and held on. (and Frei) ly Wargo Wargo yelled Dye to train and that this to that Frei would Dye got ground failure to train rose to until on the the level of deliber- release down and he Dye passed through Dye’s right leg did as position. in a cross told, grip. Wargo his suffered a flesh wound to his calf. and Frei released his Dye put only pinched to his hands behind nerve in his Wargo then told suffered attempted comply, to Frei Dye neck, As back. and Frei was unscathed. again. pain, him Fearful and attacked during the Dye identifies four seizures to up, attempting get to Frei Dye stood course of these events he contends biting yelling Wargo him to to call quit and pur- were unreasonable constitutional nothing, and Frei dog. Wargo did off 1) poses: Wargo’s dispatching cap- Frei to Dye that biting. Wargo continued told Dye ture as he ran toward his mother’s stop biting him until he laid Frei would not house, com- warning without verbal again ground. on the Afraid what down 2) surrender; at- Dye mand to Frei’s dog would do to him he laid down Dye Dye comply tack on as tried to with again, Dye fight instead continued to put Wargo’s command to his hands behind sprayed Dye in the dog Wargo off. then 3) head; Wargo’s dog, pep- use of the his pepper and struck him in spray face with per spray, response and a hand strike in the neck. Neither of these the back of get ground; Dye’s refusal to down on the Instead, Dye brought interventions down. 4) Wargo’s firing decision to continue Dye pulled gun shirt his lifted his down, Dye lay ground, at as he face Wargo yelled Dye from his waistband. at Wargo’s and without a first de- weapon. it, Dye at least twice. not to do but fired fense to these claims is that the events of (He aiming dog, claims he was for the but claims, evening Dye did not occur as majority that this be- agree with the factual dispute but this cannot be resolved point purposes assessing side the summary judgment stage. at the More Wargo obviously had no Wargo’s conduct. productively, Wargo asserts that even if way Dye knowing whom or what meant did, transpired Dye says they events his shooting.) Dye’s prompted to be actions objectively use of at all force was times Wargo pull weapon. his own Once not, and, reasonable to the extent it was began shooting, Wargo dropped to the qualified immunity is entitled to at because ground Dye, striking just and fired at him the time of the incident there was no case under the left shoulder. clearly establishing that law his conduct Wargo’s initial at last caused shot was unconstitutional. ground drop gun. to fall to the He majority agrees that if ver- up ground wound face down on the correct, sion of the events is then at least biting Despite Frei still at him. fact allegations fourth of these would be was now unarmed That much actionable stomach, fire, pausing Wargo continued fact, indisputable my to me. In seems at point put clip one a new opinion Dye’s Wargo’s account of actions weapon. An officer who arrived at the states at least two excessive force claims shooting reported scene the midst of the for which would not be entitled to watched, Wargo at while he shot qualified immunity. The first is the one position a standing five or six times from Wargo’s has identified: deci- Dye. Dye ten suffered about feet shooting Dye continue wounds, sion to after he multiple gunshot most of them *9 ground was face down on the without a of his flesh wounds on the back sides Dye initially if weapon. Even fired at limbs. He had wound on the rear of his arm, elbow, just Wargo dog, Dye and not the testified below the as well as court, during plea colloquy back of left arm. Two bullets his in state on the his longer posed majority properly and no abstractions. As the Dye was down once police offi Wargo, recognizes, Dye’s, proof no reasonable in a threat to case like of a could that he was enti cer believe failure to train could be used to demon- firing at the backside of an tled to continue municipal policy strate an unlawful that In addi unarmed and disabled individual. tolerated the use of force excessive tion, a claim Dye I find that also has officers. Ante police Elkhart at has identi point related to the second he here, Dye’s problem majority as the fied, unprovoked Frei’s attack on once out, points nothing is that he had to back and was Wargo had surrendered up allegation City that the of Elkhart’s place his hands attempting to behind training constitutionally K-9 unit in- was At was under con point, back. adequate at the time of his confrontation trying Wargo to do what trol and was fact, Wargo. with Officer In what is in long It has been well asked. established Dye’s speculations. the record contradicts police may that a officer not continue to example, Dye For asserts there were suspect is use force who subdued categories activity whole- which the complying the officer’s orders. with Frei, City of train in- Elkhart failed to Flanigan, See Frazell v. F.3d 884 cluding apprehend suspects how while Cir.1996) (7th (jury reasonably could con leash, training reports aoff but the offer clude that officer who struck sus subdued unrefuted evidence that such activities objective pect nightstick in back with used part Wargo training. were and Frei’s ly was not entitled unreasonable force and offers no evidence of other inci- Wynalda, Ellis v. qualified immunity); dents of excessive force similar to the one (force (7th Cir.1993) 243, 247 999 F.2d allegedly experienced. There is thus suspect poses is while threat is reasonable City no evidence that the of Elkhart was longer reasonable once threat is no problem aware that it had a or that its longer present); Priester v. Riviera training protecting the adequately was not Beach, (11th Cir.2000) 208 F.3d I rights agree of civilians. therefore with immunity (denying qualified to officer who majority Dye’s failure to train dog suspect to attack 1994 allowed claim cannot succeed. ground and not lying who was “per resisting). may While Frei not be a II son,” certainly instrumentality an was established, I turn background With Wargo using, of force that court, the to the release. Like the district dog’s responsible for the actions.

majority finds that it is enforceable as B. of Elkhart law, and that matter of Indiana contract Dye’s claim. At enough this is to doom concludes, agree, The best, enforceability state though, City of Elkhart is entitled to It just step analysis. the first in the law summary judgment failure to critical to take into account the fact that My only difficulty train claim. here is of his federal Dye executed this waiver with one statement that could be misinter- during plea negotia- statutory right to sue majori- preted read out of context. prosecutor. According states, tions with the ante ty that “the Constitu- testimony testimony of the his own and the municipalities to require tion does not represented during him attorney that training programs.” In the conduct ab- stract, true, plea negotiations, Dye signed the waiver might such a statement understanding than that in practicalities deal in rather but we *10 306 untarily, prosecutor a more favorable whether the a

he would receive le- gitimate purpose entering into the agreement. bring These circumstances agreement, and whether enforcement play Supreme into Court’s decision in public the waiver otherwise furthers the 386, Rumery, 480 Town Newton v. U.S. 398, at interest. 480 U.S. 107 (1987). S.Ct. 405 94 L.Ed.2d There the held that whether or not Court Rumery’s principal holding that waiver- a is a matter of waiver is enforceable agreements per dismissal are not se unen common law and that the salient federal many questions forceable left unanswered. question enforcing is whether the waiver is Decisions from a number of our sister public policy. begun provide consistent with Because circuits have some an disputed per- example, there are issues of fact that swers. For as Justice O’Con- issues, separate opinion Rumery nor’s in suggest tain to I would these remand this ed, it is the defendants in a federal civil further proceedings. case for rights suit who have proving the burden of Rumery, In a Court by preponderance of the evidence that a by a signed decided that a release defen- voluntarily, waiver was entered into that felony tampering dant whose witness prosecutorial overreaching, there was no charge dropped had been in the enforcement of the waiver the release should be enforced. In Part II public furthers the interest. See id. at (which opinion of the did command a J.) (concur (O’Connor, 107 S.Ct. 1187 Court), Justice Powell wrote: ring part concurring judg in the begin by noting the We source of the ment); Livingstone v. North Belle Vernon governs agree- law that this case. The (3d Borough, Cir.1993); 1214 F.3d purported ment to waive a to sue (8th Rhodes, Woods v. 994 F.2d 494 Cir. by conferred a federal statute. The 1993); Lynch Alhambra, question policies underlying whether the (9th Cir.1989). F.2d 1122 This means that may statute some circumstances a district properly applying court render waiver unenforceable is a Rumery grant summary judg test cannot question of federal law. We resolve this ment a release-dismissal case like this question by reference traditional com- one unless is clear as a matter of law principles, mon-law as we have resolved that there are no material issues of fact questions principles gov- other about the respect prerequisites these to en erning 1983 actions.... The relevant forceability. Livingstone, 12 F.3d at 1215 principle promise is well established: (remanding for determination whether if the unenforceable interest its disputed there were issues of material fact outweighed enforcement the cir- voluntariness); regarding Woods, 994 F.2d by public policy cumstances harmed (finding reasonable minds could not agreement. enforcement of the differ on whether voluntary release was (citation 480 U.S. at 107 S.Ct. 1187 by prosecutorial secured overreaching); omitted). opinion, In Part III-A of the Lynch, 880 F.2d at 1129 n. (recognizing garnered majori- which also the votes of a inquiry that “the the district court Justices, ty rejected the Court perform undermines, extent, must to some agreements notion that waiver-release very purpose of the release-dismissal” per were against public policy. se void as finding but inquiry “such an is neces Instead, Rumery adopted case-by-case sary public to conform with the policy approach requires which requirement courts to assess Supreme announced whether the waiver Rumery”). was entered into vol- Court in *11 10, 107 n. Id. at 398 approval. court none case made in this court district The 1187. legal S.Ct. or findings necessary factual the of Rumery. The by required determinations more a far present this case facts of The Rumery, seems it cites although

majority, hand, Dye was one theOn picture. mixed rejected the Rumery because think that of counsel, language the by represented never en- are releases that proposition clear, suffi- he had and was agreement the they that are mean forceable, must This it. understand time read cient Furthermore, the always enforceable. finding voluntariness. a of favors evidence compels the majority uses the language prison, in hand, Dye was the other On placed improperly has it that conclusion particu- was that he no evidence there is in the the flaws Dye to show on burden the the not draft he did sophisticated, larly on the burden putting release, of instead pre- never was agreement the agreement, Rumery’s it meets that show state to the Rumery, court, and unlike to the sented discussing paragraphs Its two standards. sev- maximum a charge with faced a who “any like phrases replete Rumery are an at- sentence, facing Dye was en-year has advances,” “Dye not or argument pressures The charge. murder tempted As I contend.” not cited,” “Dye does considerably greater thus Dye were on of the below, my review briefly indicate Moreover, de- Rumery. facing those than materi- that there me convinces record attempt to rationalize majority’s the spite Dye’s waiver regarding fact al issues opportu- the giving Dye agreement the summary judgment granting preclude that sen- serving his after fresh” nity to “start the waiv- the on basis to the defendants that conclude might tence, fact trier of a er. this waiver signing Dye of the benefits its on Even illusory. were agreement Voluntariness A. give toDye required face, agreement the defendant voluntari criminal Whether against § 1983 suit bring a up his arrange into waiver-dismissal ly entered in City of Elkhart the Officer facts “particular the depends ment bringing state not only for their case.” surrounding [the] circumstances (claims that him against actions law tort majority The at 1211. 12 F.3d Livingstone, given economically foolish have been would Rumery was a that Rumery stressed status); Dye judgment-proof likely Dye’s businessman, was sophisticated that promise written received that agreement, jail signed he when dismissed. him would charges counsel, that his represented rational highly like hardly seems This and that agreement, counsel drafted a reasonable make it would judgment, to consider days Rumery three the voluntariness question jury that emphasized also Court The deal. deal. to the agreement agreement sign decision Rumery’s con- allay any attempts to benefits because rational” “highly one-sidedness by the raised cerns “he obvious: were agreement in- prosecutor claiming waiver prosecution criminal immunity from gained negotiations plea their during formed civil suit abandoning a consideration have no would waiver signing 480 U.S. .” have lost may well This, how- negotiations. plea footnote, effect Finally, in record. fact ever, a contested have majority indicated Dye’s coun- it was dispute is no There of an the voluntariness confidence more signing a idea suggested who sel to the presented it were agreement waiver in exchange for a better bar- B. Legitimate Prosecutorial Purpose *12 gain. Contrary to the majority’s assertion, In upholding agreement it, the before however, Dye both and his attorney de- Rumery also on relied the fact that “the clared under oath that Dye when signed prosecutor had an independent, legitimate the mutual release it was their under- reason to make agreement this directly standing, as a of plea result the negotia- related to prosecutorial responsibili tions with prosecutor, the that the waiver ties.” Id. at 107 S.Ct. 1187. This would indeed affect plea the negotiations finding was critical because all the Dye that would Justices receive a more favor- joined (and that the majority plea able agreement even more so it. the four Justices) The majority dissenting seizes on the recognized word “under- standing” way as a the risk that dismissing of this agreements testi- release-dismissal mony, but I reject would not could be by it so readily. prosecutors abused seeking to Nothing says that protect public written evidence is officials from civil liability. competent Rumery purposes to illumi- As Justice explained O’Connor in her con the nate course negotiations of the currence, that led the availability of agree release to the contested release. And a factual ments may tempt public officials trump to exploration negotiations of these would not up charges in to order avoid meritorious raise the specter of a mini-trial on the claims, civil them tempt “to ignore their underlying lawsuit between Dye and War- public by duty dropping meritorious crimi go that the release designed to avert. prosecutions nal in order to risk, avoid the It is reasonable to infer from the testimo- expense, and publicity of a 1988 suit.” ny Dye and his lawyer offered that the Id. at 400, 107 S.Ct. 1187. prosecutor led to believe that he case, In this Wargo’s only a evidence of a receive more plea agree- favorable “legitimate reason to ment if he make signed [the the waiver] release. There is no agreement dispute directly that prosecutorial related to received no such benefit. responsibilities” is that the idea of a waiver Under traditional law, contract the fact prosecutor the told that one party promises made during ne- Dye that it would not be considered as gotiations that later were not reflected part prosecutor’s of the charging decision. plain language of the contract would however, Again, latter claim is disput- abe basis for voiding the contract ed the testimony both and the grounds. voluntariness But again, attorney represented him in question plea here not whether the waiver is negotiation with prosecutor. valid as a Reading matter law, of contract but rath- the record in light whether, er most as a matter of favorable to public policy, it Dye, we should have before be us a enforced. case For where the purposes of this prosecutor analysis, as Rumery encouraged clear, sign makes a waiv- question agreement er with the voluntariness is akin to understanding standards of “voluntary having done so would knowing” in improve plea plea negotiations. bargain, And in but context, prosecutor then went as 11(d) Fed.R.Crim.P. back on takes pains to promise. em- verbal The only phasize, a court is not why entitled to reason accept prosecutor would use such any plea of guilty it until strategy determines that is to induce a vulnerable defen- the plea was voluntary. dant Enforceability of sign waiver that would shield a plea agreement under state public contract law officials from future liability while at is entirely beside the point. the same time not giving up any discretion After release. surrounding the stances legitimate neither This prosecute. dispose of that, possible might it prose- directly related one nor purpose summary round Instead, at a second matters responsibilities. cutorial nec- best, motions, might be or a trial at judgment negotiations faith bad smacks this respectfully dissent essary. to contract inducement fraud in route, judgment. part obtained A waiver worst. policy, be public

cannot, a matter

enforced. Public Interest

C. is a sub- that there

Rumery recognizes using public interest

stantial con- unconstitutional punish

expose is also There officials. by public duct GUERRERO, Plaintiff- Antonio prac- approving not interest substantial Appellant, undermine tendency have tices system. justice criminal of integrity an inter- hand, public has theOn other Attorney ASHCROFT,1 General John litigation, and civil frivolous avoiding est States, Defendant- the United entering in which situations will be there Appellee. will agreement dismissal a release into 00-3306. defendant’s No. from the both make sense of view point view point of Appeals, Court States United limited resources prosecutors Circuit. Seventh strategic concerns. other 15, 2001. Argued Feb. facts showed undisputed If the release; if the release this freely executed 13, 2001. June Decided every- to the court presented had been clear; been about expectations one’s the central dispute about

if there was prom- prosecutor’s scope of

fact (i.e. would affect release whether

ise not), agree I could charges or criminal this case. disposition of majority’s

with the that there show counter-factuals

And these satisfy cases that will be

certainly many, if both possibly

Rumery standards — rec- adequate an make care to

sides take use release-dismiss- they towish when

ord have de- I But case agreements.

al remand Dye’s case. would

scribed the district court of the case part the circum- exploration factual

for a full defendant, Janet Reno. 43(c)(2), original R.App. John P. to Fed. Pursuant automatically substituted Ashcroft