When In Doubt, Get It In Writing

Defense Digest, Vol. 22, No. 4, December 2016

By April L. Cressler, Esq.*

It was New Year’s Eve, and Sue Smith was closing out her year with a bang. It wasn’t yet midnight when the bartender determined it was time to cut her off. Sue responded by launching a beer bottle at the bartender’s face, and a scuffle with two uniformed officers ensued, eventually concluding with Sue being tasered and an officer receiving substantial bite wounds. At her preliminary hearing, Sue pleaded for mercy because she wanted to be a nurse and a conviction would likely hurt her chances of finding a job. Also, during the struggle, Sue had been tasered in her breast area. In light of the circumstances, all parties agreed that the charges would be withdrawn. Sue then immediately filed suit against the officers for excessive force in the use of the Taser. With no record of her admission of guilt and pleas for mercy, a costly defense would ensue. All of which could have been avoided with a release/dismissal agreement.

Release/dismissal agreements are by no means a new strategy for those prospectively seeking to prevent Section 1983 claims stemming from an arrest and/or criminal prosecution. Nor are they unique to Pennsylvania. A prominent case that addressed release/dismissal agreements, and subsequently established standards for evaluating the voluntariness of said agreements, was decided in 1987 in the case of Town of Newton v. Rumery, 480 U.S. 386 (1987). The Rumery case involved allegations of sexual assault, witness intimidation and a prominent criminal defense attorney determined to win Rumery’s case at any cost. In the end, a written settlement was reached in which it was agreed that all charges against Rumery would be dismissed as long as Rumery agreed not to sue the town. Further, all parties agreed that one of the reasons Rumery would not be prosecuted was to protect the alleged victim, who did not want to testify.

Approximately ten months after signing the agreement, Rumery filed a Section 1983 action, alleging that the town and its officers had violated his constitutional rights. The defendants moved to dismiss based upon the release/dismissal agreement, and the District Court concluded that a release of claims under Section 1983 was valid if it results from a decision that was voluntary, deliberate and informed. Upon appeal, the Supreme Court ultimately concluded that release/dismissal agreements were enforceable and that the Rumery agreement was valid because: (1) it was voluntary; (2) there was no evidence of prosecutorial misconduct; and (3) enforcement of the agreement would not adversely affect relevant public policy interests. The Supreme Court emphasized a case-by-case analysis of the facts giving rise to the agreement.

The Third Circuit similarly addressed the enforceability of a release/dismissal agreement in Livingstone v. North Belle Vernon Borough, 91 F.3d 515 (3d Cir. Pa. 1996). In Livingstone, police responded to a domestic dispute in which Mrs. Livingstone hit a police officer with a fishing rod, resulting in her being taken into custody. Although contested, Mrs. Livingstone argued that a stun gun was used between her legs and a hospital examination would confirm a burn in the vulval area. The defendants contended they used only the force necessary to place Mrs. Livingstone under arrest. Mrs. Livingstone was charged with aggravated assault, among other charges.

Prior to Mrs. Livingstone taking the stand during her criminal trial (and perhaps testifying to the use of the stun gun on her genital area), a conference was held, and an agreement was reached that clearly laid out the understanding that the Livingstones would forgo any civil claims upon the payment of all bills associated with the subject incident. The parties all agreed to the representation of the agreement on the record, and the court granted an acquittal. One year later, the Livingstones sued the police officers and their employing municipalities.

The defendants sought dismissal, arguing the suit was barred by the release/dismissal agreement. However, the Livingstones claimed they never intended to waive their rights to sue, pointing out that the agreement was never reduced to writing and was contrary to Pennsylvania law. Protracted litigation followed until the matter of the validity of the agreement reached the Third Circuit Court of Appeals. In evaluating the soundness of the release/dismissal agreement, the court looked to Rumery for guidance and acknowledged that citizens are permitted to waive their constitutional rights in a variety of circumstances. Accordingly, the court held that, as Pennsylvania has adopted forms of plea bargaining, so, too, would the Pennsylvania Supreme Court be likely to permit release/settlement agreements upon a showing of voluntariness. The court cautioned, however, the scrutiny applicable to the voluntariness of a release/settlement agreement that is not reduced to writing. Accordingly, in order to ensure that the agreement was not reached under improper circumstances or under the threat of prosecution, the voluntariness of oral release/dismissal agreements must be evaluated according to the heightened clear and convincing standard.

Thus, in order to protect your law enforcement clients, it is critical to work with the prosecuting attorney in order to ensure that any release/settlement agreement is in writing and it is clear that it is voluntary and not the product of duress or misconduct. When agreements cannot be reduced to writing, it is important that an acknowledgement is made on the record that probable cause existed for the arrest and/or that the force used was only that necessary to effectuate the arrest.

*April is an associate in our Pittsburgh, Pennsylvania office who can be reached at 412.803.3478 or alcressler@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 4, December 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}