By Bradford N. Louison of Louison, Costello, Condon & Pfaff, LLP.
Often there will be a consideration of obtaining a release of all civil claims as part of a plea agreement in criminal cases. This is a common concern in troublesome cases where the criminal defendant has threatened suit, or in cases where there was an issue of the amount of force used during the apprehension.
Unfortunately, judges are loath to dismiss cases as a result of previously signed releases due to an ingrained belief of a right of access to the courts. More importantly is the issue of voluntariness i.e., whether there was undue pressure placed on the defendant to sign a release in exchange for a favorable plea agreement in a criminal case, or in other words, whether it is fair to require a defendant to sign a release in exchange for avoiding a jail sentence. In fact prior to the 1987 U.S. Supreme Court decision in the Town of Newton, New Hampshire v. Rumery case, the Federal Court in Boston would not accept any releases to drop civil suits in exchange for the dismissal of criminal charges.
The United States Supreme Court in the case of Town of Newton (New Hampshire) v. Rumery, 480 U.S. 386, 389, 107 S. Ct. 1187, 94 L. Ed. 2d 405 (1987) Justice Powell, held that “a court properly may enforce an agreement in which a criminal defendant releases his right to file a section 1983 action in return for a prosecutor’s dismissal of pending criminal charges.” In Rumery, the plaintiff and his attorney had discussed and signed such an agreement which in Rumery dealt with the dismissal of witness tampering charges, a felony, leveled against the plaintiff. The release-dismissal agreement provided that plaintiff would not sue the defendant town or any of its officials for his arrest.
Reversing the First Circuit, which had adopted a per se rule invalidating such release-dismissal agreements, the Court applied “traditional common law principles” to what it characterized as a question of federal law. It rejected the argument that release-dismissal agreements were inherently coercive. In its view, such agreements could further legitimate prosecutorial and public interests.
In Rumery, Justice O’Connor agreed with the Court’s case-by-case approach to the validity to such agreements. She also maintained that it was the burden of those relying on such an agreement to show that it was neither involuntary nor the result of an abuse of the criminal process. As to the relevant factors they were; 1., the knowledge and experience of the criminal defendant and the circumstances of the execution of the release, including, importantly, whether the defendant was counseled, are clearly relevant. 2., The nature of the criminal charges that are pending is also important, for the greater the charge, the greater the coercive effect. 3., The existence of a legitimate criminal justice objective for obtaining the release will support its validity. 4., Importantly, the possibility of abuse is clearly mitigated if the release-dismissal agreement is executed under judicial supervision.
If Rumery upheld only the general validity of release-dismissal agreements courts have to make case-by-case determinations on the question of voluntariness. The threshold question is the appropriate burden of proof on this issue. The Third Circuit, after noting that Rumery had not addressed the matter, concluded that the proper standard was “clear and convincing evidence” rather than preponderance of the evidence. Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 534 (3d Cir. 1996).
A First Circuit case, Hall v. Ochs, 817 F.2d 920 (1st Cir. 1987) in which the court found that a release-dismissal agreement was not entered into voluntarily is a good example of judicial scrutiny of release-dismissal agreements. In that case, the plaintiff was arrested for failure to produce his driver’s license when requested and for disorderly conduct. Thereafter, while in jail at the police station, a commanding officer requested several times of the plaintiff that he sign a waiver of his right to sue the police officers for various constitutional violations committed in the course of his arrest, including racial discrimination. After refusing to do so, the plaintiff finally called a lawyer who had helped him with a real estate transaction and who advised him to sign the waiver and “get out of there as fast as he could.” The First Circuit found that the plaintiff’s waiver was not voluntary and was thus ineffective. He was in jail after seeing the police department humiliate him in front of his daughter and forcibly remove him from the premises he had the right to be on. Moreover, it was only after three refusals to sign and over an hour in jail that “his resolve buckled.” Hall.
The Court in Rumery insisted on a fact-specific determination that a plaintiffs release-dismissal agreement be voluntary and not against public policy in order to constitute an enforceable waiver of § 1983 claims. The three requirements in Rumery must be present in each case in order to uphold a release. The requirement of “a legitimate criminal justice objective for obtaining the release” may be the hardest requirement to obtain, particularly in the ordinary case where the prosecution or police are seeking to simply avoid the possibility of a future civil suit arising out of the arrest.
Further, there will be difficulties in trying to overcome the claim by the former criminal defendant, now civil plaintiff, that he simply signed the release to avoid going to jail and would have done anything to avoid a committed sentence. You will even find the criminal defense attorney admitting to advising his client to sign the release with the advice that the release is probably not enforceable and thus will probably not prevent a civil suit in the future.
If you have any questions regarding these issues, please feel free to contact Attorney Bradford N. Louison of Louison, Costello, Condon & Pfaff, LLP at (617) 439-0305.