Anthony H. Dye, Plaintiff-Appellant, v. William B. Wargo, Jr., K-9 named Frei, and City of Elkhart, Indiana, Defendants-Appellees.
No. 00-3250
United States Court of Appeals For the Seventh Circuit
Argued February 16, 2001--Decided June 11, 2001
Before Easterbrook, Manion, and Diane P. Wood, Circuit Judges.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:99-CV-0165RM--Robert L. Miller., Jr., Judge.
Dye was carrying a firearm while driving his Corvette at 2:30 a.m. one day in Elkhart, Indiana. Officer William Wargo pulled behind the Corvette with his flashing lights on. Dye did not stop and made for his mother‘s house. After pulling into the driveway, Dye leapt from the car and ran toward the door. Wargo told his K-9, Frei, to prevent Dye‘s escape, which Frei did by biting one of Dye‘s legs, as Frei had been trained to do. At Wargo‘s direction, Dye assumed a prone position, and Frei released his
Although this much is common ground, vital details are disputed. Wargo says that Dye was speeding, driving erratically, and ran a stop sign; Dye says that he was obeying all traffic laws. Wargo says that he activated his siren as well as his flashing lights; Dye denies hearing a siren. Dye asserts that he fled because the Elkhart police have a reputation for mistreating young black suspects; Elkhart denies that it has such a reputation. (An alternative hypothesis is that Dye hoped that he could hide the gun in his mother‘s house and avoid the stiff penalty for possession by a felon. But the reason for his flight is legally irrelevant, and Dye‘s explanation, even if true, is no justification.) Wargo contends that Frei released Dye after halting his flight and did not attack a second time until Dye refused to be handcuffed and sprang to his feet; Dye contends that the sequence was reversed and that he got back up to defend himself against Frei‘s unprovoked attack. Dye asserts that he shot at Frei only after Wargo refused to call off his dog; Wargo responds that he rather than Frei was Dye‘s target. According to Dye, his most serious injuries were received after he had given up, thrown the gun away, was again lying down, and had been rendered helpless by a bullet; according to Wargo, Dye had the gun in his hand and was trying to use it when he received his last wounds. If Dye‘s version is correct, these injuries at least would be actionable under
Some of the statements that Dye has made under oath in this litigation are inconsistent with statements he made under oath in state court. For example, Dye‘s current assertion that he never
Two of the three defendants do not belong in this case. In litigation under
As for Frei:
This leaves the claim against Wargo, which as the district court held is barred by Dye‘s release of “any State or Federal claim or cause of action of any kind whatsoever . . . arising out of the arrest and shooting of Anthony H. Dye, on or about March 22, 1997.” The release is unconditional, and if this language were not comprehensive enough an additional two pages go on to close every possible loophole. Dye does not deny that the release, taken at face value, bars this suit (and also requires him to reimburse defendants for their legal fees). Nonetheless, Dye insists, the release is subject to an unstated condition: that he
Dye tries to get mileage from the fact that his is the only signature on the release. Yet, as the district judge pointed out, the statute of frauds requires the signature only of the party sought to be bound. Consolidation Services, Inc. v. KeyBank N.A., 185 F.3d 817, 819-20 (7th Cir. 1999) (Indiana law); Mehling v. Dubois County Farm Bureau Co-Op Ass‘n, Inc., 601 N.E.2d 5, 7 (Ind. App. 1992). Cf. In re Vic Supply Co., 227 F.3d 928 (7th Cir. 2000).
What Dye needed to show is that the City did not agree to the release, not simply that the City‘s agents failed to sign the release. This document is a mutual release, not a unilateral waiver, so its effectiveness depends on the City‘s assent. Dye asserts that the City did not
Thus the release is valid under Indiana law and extinguishes Dye‘s claims. Still, we must consider Dye‘s contention that the contract is “unenforceable [because] the interest in its enforcement is outweighed in the circumstances by a [federal] public policy harmed by enforcement of the agreement.” Newton v. Rumery, 480 U.S. 386, 392 (1987). The premise of Dye‘s argument is that his version of events is correct. Federal law prevents police from getting off scot free after shooting helpless suspects, Dye contends. Dye‘s position ignores the point of a release--which is to avoid the need to decide whose story is to be believed. We cannot just assume that Dye is telling the truth now, and that both Wargo (now) and Dye himself (at the time of his guilty plea) have dissembled. It would be necessary to hold a trial to determine whether Dye‘s current story is
Dye did not get cash for his settlement, but he did receive value (avoidance of any debt that might hang over him after prison); his legal position here, however, would apply even to persons who executed releases in exchange for monetary settlements. It is difficult to see how making releases unenforceable could help other persons in Dye‘s position who might very much want to resolve their disputes, only to be rebuffed by municipalities who would be unwilling to enter agreements that their adversaries could choose to discard. See Pierce v. Atchison, Topeka & Santa Fe Ry., 65 F.3d 562 (7th Cir. 1995). It is equally difficult to see why, if a plaintiff in
Newton, the only case on which Dye relies, offers him little aid, for it enforced a release of liability under
Dye has not cited, and we have not found, any case holding that a mutual release of civil liability is unenforceable under federal law. Federal courts have not embraced the view, see Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073 (1984), that settlement interferes with judges’ ability to declare the law, right wrongs, and otherwise act as ombudsmen. Litigation offers a means to vindicate claims, but entitlement is not compulsion. Section 1983 and associated statutes do not employ the approach of the Fair Labor Standards Act and the handful of other federal laws that either foreclose private settlements or require their supervision by a public official. See
Circumstances amounting to duress, the kind of threats that undermine any contract, would preclude enforcing a release as well. But Dye does not contend that his release was extracted by
Affirmed
Anthony H. Dye, Plaintiff-Appellant, v. William B. Wargo, Jr., K-9 named Frei, and City of Elkhart, Indiana, Defendants-Appellees.
No. 00-3250
United States Court of Appeals For the Seventh Circuit
Argued February 16, 2001--Decided June 11, 2001
I
Before turning to the release itself, I believe it is necessary to give a somewhat more detailed account of the facts of the encounter between Dye and Wargo. I do so because I think Dye‘s excessive force claim extends to more conduct than the majority would recognize, because parts of the majority‘s account either omit critical facts favorable to Dye or dwell on facts
In his
A. sec.1983 Claims Against Wargo
As the majority has reported, the events that triggered this lawsuit began around 2:30 a.m. on March 22, 1997. Dye was driving his brother‘s Chevrolet Corvette on Indiana Avenue, within the City of Elkhart, headed toward his mother‘s house. He was obeying the speed limit and all other traffic laws when he observed that he was being followed by a police car, which turned out to be driven by Officer Wargo. Dye reached the intersection of Indiana Avenue and Sterling Avenue and, still in compliance with all traffic laws, came to a full stop. He then turned right onto Sterling Avenue. Nonetheless, after he made the turn, he saw that the police car had turned on its flashing overhead lights. Dye realized that the officer was signaling to him to pull over, but he continued driving in the short-sighted hope that he might be able to reach his mother‘s house and get inside before the police officer could stop him. His motivation was simple: Dye was a convicted felon and he was carrying an unlicenced 9mm handgun. With Wargo now in pursuit, Dye turned into the alley behind his mother‘s house, drove until he came
The minute his car came to a halt, Dye opened the door and without looking back made a dash for the house. Wargo, who had pulled in behind him, saw Dye start running toward the house and released Frei. Wargo never ordered Dye to stop, nor did he warn Dye that he was about to release the dog. Frei overtook Dye before Dye reached the house. As he was trained to do, Frei bit Dye‘s leg and held on. Wargo yelled to Dye that Frei would not release until Dye got down on the ground in a cross position. Dye did as he was told, and Frei released his grip. Wargo then told Dye to put his hands behind his back. As Dye attempted to comply, Frei attacked him again. Fearful and in pain, Dye stood up, attempting to get Frei to quit biting him and yelling to Wargo to call off the dog. Wargo did nothing, and Frei continued biting. Wargo told Dye that Frei would not stop biting him until he laid down again on the ground. Afraid of what the dog would do to him if he laid down again, Dye instead continued to fight the dog off. Wargo then sprayed Dye in the face with pepper spray and struck him in the back of the neck. Neither of these interventions brought Dye down. Instead, Dye lifted his shirt and pulled his gun from his waistband. Wargo yelled at Dye not to do it, but Dye fired at least twice. (He claims he was aiming for the dog, but I agree with the majority that this is beside the point for purposes of assessing Wargo‘s conduct. Wargo obviously had no way of knowing whom or what Dye meant to be shooting.) Dye‘s actions prompted Wargo to pull his own weapon. Once Dye began shooting, Wargo dropped to the ground and fired at Dye, striking him just under the left shoulder.
Wargo‘s initial shot at last caused Dye to fall to the ground and drop his gun. He wound up face down on the ground with Frei still biting at him. Despite the fact that Dye was now unarmed and on his stomach, Wargo continued to fire, pausing at one point to put a new clip in his weapon. An officer who arrived at the scene in the midst of the shooting reported that while he watched, Wargo shot at Dye five or six times from a standing position about ten feet from Dye. Dye suffered multiple gunshot
Dye identifies four seizures during the course of these events that he contends were unreasonable for constitutional purposes: 1) Wargo‘s dispatching Frei to capture Dye as he ran toward his mother‘s house, without any warning or verbal command to Dye to surrender; 2) Frei‘s attack on Dye as Dye tried to comply with Wargo‘s command to put his hands behind his head; 3) Wargo‘s use of the dog, pepper spray, and a hand strike in response to Dye‘s refusal to get down on the ground; and 4) Wargo‘s decision to continue firing at Dye as he lay on the ground, face down, and without a weapon. Wargo‘s first defense to these claims is that the events of that evening did not occur as Dye claims, but this factual dispute cannot be resolved at the summary judgment stage. More productively, Wargo asserts that even if events transpired as Dye says they did, his use of force was at all times objectively reasonable and, to the extent it was not, he is entitled to qualified immunity because at the time of the incident there was no case law clearly establishing that his conduct was unconstitutional.
The majority agrees that if Dye‘s version of the events is correct, then at least the fourth of these allegations would be actionable under
B. City of Elkhart
The majority concludes, and I agree, that the City of Elkhart is entitled to summary judgment on Dye‘s failure to train claim. My only difficulty here is with one statement that could be misinterpreted if read out of context. The majority states, ante at 4, that “the Constitution does not require municipalities to conduct training programs.” In the abstract, such a statement might be true, but we deal in practicalities rather than abstractions. As the majority properly recognizes, in a case like Dye‘s, proof of a failure to train could be used to demonstrate an unlawful municipal policy that tolerated the use of excessive force by Elkhart police officers. Ante at 4. Dye‘s problem here, as the majority points out, is that he had nothing to back up his allegation that the City of Elkhart‘s K-9 unit training was constitutionally inadequate at the time of his confrontation with Officer Wargo. In fact, what is in the record contradicts Dye‘s speculations.
II
With this background established, I turn to the release. Like the district court, the majority finds that it is enforceable as a matter of Indiana contract law, and that this is enough to doom Dye‘s claim. At best, though, enforceability under state law is just the first step in the analysis. It is critical to take into account the fact that Dye executed this waiver of his federal statutory right to sue during plea negotiations with the prosecutor. According to his own testimony and the testimony of the attorney that represented him during the plea negotiations, Dye signed the waiver with the understanding that in exchange he would receive a more favorable plea agreement. These circumstances bring into play the Supreme Court‘s decision in Town of Newton v. Rumery, 480 U.S. 386 (1987). There the Court held that whether or not a waiver is enforceable is a matter of federal common law and that the salient question is whether enforcing the waiver is consistent with public policy. Because there are disputed issues of fact that pertain to these issues, I would remand this case for further proceedings.
In Rumery, a majority of the Court decided that a release signed by a defendant whose felony witness tampering charge had been dropped in exchange for the release should be enforced. In Part II of the opinion (which did command a Court), Justice Powell wrote:
We begin by noting the source of the law that governs this case. The agreement purported to waive a right to sue
conferred by a federal statute. The question whether the policies underlying that statute may in some circumstances render that waiver unenforceable is a question of federal law. We resolve this question by reference to traditional common-law principles, as we have resolved other questions about the principles governing sec. 1983 actions. . . . The relevant principle is well established: a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement.
480 U.S. at 392 (citation omitted). In Part III-A of the opinion, which also garnered the votes of a majority of the Justices, the Court rejected the notion that waiver-release agreements were per se void as against public policy. Instead, Rumery adopted a case-by-case approach which requires courts to assess whether the waiver was entered into voluntarily, whether the prosecutor had a legitimate purpose for entering into the agreement, and whether enforcement of the waiver otherwise furthers the public interest. 480 U.S. at 398.
Rumery‘s principal holding that waiver-dismissal agreements are not per se unenforceable left many questions unanswered. Decisions from a number of our sister circuits have begun to provide some answers. For example, as Justice O‘Connor‘s separate opinion in Rumery suggested, it is the defendants in a federal civil rights suit who have the burden of proving by a preponderance of the evidence that a waiver was entered into voluntarily, that there was no prosecutorial overreaching, and that the enforcement of the waiver furthers the public interest. See id. at 401 (O‘Connor, J.) (concurring in part and concurring in the judgment); Livingstone v. North Belle Vernon Borough, 12 F.3d 1205, 1214 (3d Cir. 1993); Woods v. Rhodes, 994 F.2d 494 (8th Cir. 1993); Lynch v. City of Alhambra, 880 F.2d 1122 (9th Cir. 1989). This means that a district court properly applying the Rumery test cannot grant summary judgment in a release-dismissal case like this one unless it is clear as a matter of law that there are no material issues of fact with respect to these prerequisites to enforceability. Livingstone, 12 F.3d at 1215 (remanding for determination whether there were disputed issues of material fact regarding voluntariness); Woods, 994 F.2d at 500 (finding reasonable minds could not differ on whether release was voluntary or secured by prosecutorial overreaching); Lynch, 880 F.2d at 1129 n.10 (recognizing that “the inquiry that the district court must perform undermines, to some extent, the very purpose of the release-dismissal” but finding that “such an inquiry is necessary to conform with the public policy requirement announced by the Supreme Court in Rumery“).
The district court in this case made none of the necessary factual findings or legal determinations required by Rumery. The majority, although it cites Rumery, seems to think that because Rumery rejected the proposition that releases are never enforceable, this must mean that they are always enforceable. Furthermore, the language the majority uses compels the conclusion that it has improperly placed the burden on Dye to show the flaws in the release, instead of putting the burden on the state to show that it meets Rumery‘s standards. Its two paragraphs discussing Rumery are replete with phrases like “any argument Dye advances,” or “Dye has not cited,” or “Dye does not contend.” As I indicate briefly below, my review of the record convinces me that there are material issues of fact regarding Dye‘s waiver that preclude granting summary judgment to the defendants on the basis of the waiver.
A. Voluntariness
Whether a criminal defendant voluntarily entered into a waiver-dismissal arrangement depends on the “particular facts and circumstances surrounding [the] case.” Livingstone, 12 F.3d at 1211. The majority in Rumery stressed that Rumery was a sophisticated businessman, that he was not in jail when he signed the agreement, that he was represented by counsel, that his counsel drafted the agreement, and that Rumery had three days to consider the deal. The Court also emphasized that Rumery‘s decision to sign the agreement was “highly rational” because the benefits of the agreement were obvious: “he gained immunity from
The facts of this case present a far more mixed picture. On the one hand, Dye was represented by counsel, the language of the agreement was clear, and he had sufficient time to read and understand it. This evidence favors a finding of voluntariness. On the other hand, Dye was in prison, there is no evidence that he was particularly sophisticated, he did not draft the agreement, the agreement was never presented to the court, and unlike Rumery, who faced a charge with a maximum seven-year sentence, Dye was facing an attempted murder charge. The pressures on Dye were thus considerably greater than those facing Rumery. Moreover, despite the majority‘s attempt to rationalize the agreement as giving Dye the opportunity to “start fresh” after serving his sentence, a trier of fact might conclude that the benefits to Dye of signing this waiver agreement were illusory. Even on its face, the agreement required Dye to give up his right to bring a
The majority attempts to allay any concerns raised by the one-sidedness of the waiver by claiming that the prosecutor informed Dye during their plea negotiations that his signing the waiver would have no effect on the plea negotiations. This, however, is a contested fact in the record. There is no dispute that it was Dye‘s counsel who suggested the idea of signing a waiver in exchange for a better plea bargain. Contrary to the majority‘s assertion, however, both Dye and his attorney
Under traditional contract law, the fact that one party made promises during negotiations that later were not reflected in the plain language of the contract would not be a basis for voiding the contract on voluntariness grounds. But again, the question here is not whether the waiver is valid as a matter of contract law, but rather whether, as a matter of public policy, it should be enforced. For purposes of this analysis, as Rumery makes clear, the question of voluntariness is akin to the standards of “voluntary and knowing” in plea negotiations. And in the plea context, as
B. Legitimate Prosecutorial Purpose
In upholding the agreement before it, Rumery also relied on the fact that “the prosecutor had an independent, legitimate reason to make this agreement directly related to his prosecutorial responsibilities.” Id. at 398. This finding was critical because all the
In this case, Wargo‘s only evidence of a “legitimate reason to make [the waiver] agreement directly related to prosecutorial responsibilities” is that the idea of a waiver was Dye‘s and that the prosecutor told Dye that it would not be considered as part of the prosecutor‘s charging decision. Again, however, the latter claim is disputed by the testimony of both Dye and the attorney that represented him in the plea negotiation with the prosecutor. Reading the record in the light most favorable to Dye, we have before us a case where the prosecutor encouraged Dye to sign a waiver agreement with the understanding that his having done so would improve his plea bargain, but that the prosecutor then went back on that verbal promise. The only reason why a prosecutor would use such a strategy is to induce a vulnerable defendant to sign a waiver that would shield public officials from future liability while at the same time not giving up any discretion to prosecute. This is neither a legitimate purpose nor one directly related to prosecutorial responsibilities. Instead, it smacks of bad faith negotiations at best, fraud in the inducement to contract at worst. A waiver obtained by this route cannot, as a matter of public policy, be enforced.
C. The Public Interest
Rumery recognizes that there is a substantial public interest in using
If the undisputed facts showed that Dye freely executed this release; if the release had been presented to the court and everyone‘s expectations about it had been clear; if there was no dispute about the central fact of the scope of the prosecutor‘s promise (i.e. whether the release would affect the criminal charges or not), I could agree with the majority‘s disposition of this case. And these counter-factuals show that there certainly will be cases that satisfy the Rumery standards--possibly many, if both sides take care to make an adequate record when they wish to use release-dismissal agreements. But the case I have described is not Dye‘s case. I would remand this part of the case to the district court for a full factual exploration of the circumstances surrounding the release. After that, it might be possible to dispose of matters at a second round of summary judgment motions, or a trial might be necessary. I respectfully dissent from this part of the judgment.