Dye, Anthony v. Wargo, William B.

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3250

Anthony H. Dye,

Plaintiff-Appellant,

v.

William B. Wargo, Jr., K-9 named Frei,

and City of Elkhart, Indiana,

Defendants-Appellees.

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.

Argued February 16, 2001--Decided June 11, 2001

Before Easterbrook, Manion, and Diane P.

Wood, Circuit Judges.

Easterbrook, Circuit Judge. Anthony Dye

was injured while attempting to flee from

the police in Elkhart, Indiana. After his

capture, Dye pleaded guilty to three

state felonies he committed during these

events: attempted battery with a deadly

weapon (a charge reduced from attempted

murder), possession of a handgun by a

convicted felon, and possessing a handgun

within 1,000 feet of a school. In this

federal litigation under 42 U.S.C.

sec.1983 Dye seeks to turn the tables and

collect damages on account of the

injuries he sustained while being

subdued. But the district court granted

summary judgment in defendants’ favor,

ruling that Dye’s claims are covered by a

release.

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

leg. Before he could be handcuffed,

however, Dye got up, pulled a semi-

automatic pistol from his waistband, and

opened fire. Wargo returned fire and

called on Frei for aid. Dye got the worst

of things: against Dye’s multiple gunshot

wounds (to his chest and both legs) and

dog bites, Wargo suffered only a pinched

nerve in his neck. Frei later received

awards for valor in the line of duty.

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 sec.1983, for shooting a

disarmed and passive suspect is a clear

example of excessive force in violation

of the fourth amendment. But if Wargo’s

version is correct, Dye has no valid com

plaint.

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

fired at Wargo is inconsistent with the

affirmative answer he gave when asked:

"And you shot at an Elkhart City

Policeman by the name of William Wargo,

Jr.?" His current assertion that he fled

toward his mother’s home only because he

feared violence at the hands of the

police is inconsistent with this

statement made to the state judge: "And

by me knowing at the time I had a gun in

my possession, you know, I tried to elude

him. And being that I was pretty close to

my mother’s house, you know, I tried to

make it there." One or the other of Dye’s

stories is perjury. His lawyer contends

that Dye was entitled to lie in state

court to ensure that the judge accepted

the favorable plea bargain, and that we

should therefore disregard his earlier

sworn statements. That is not a position

any judicial system can, or does,

tolerate. See, e.g., United States v.

Stewart, 198 F.3d 984 (7th Cir. 1999);

Hugi v. United States, 164 F.3d 378, 381

(7th Cir. 1999). Cf. Cleveland v. Policy

Management Systems Corp., 526 U.S. 795,

806 (1999) (collecting cases from every

circuit holding that a litigant is bound

by answers given during a deposition,

despite a later affidavit contradicting

those answers, unless there is a legally

valid reason why the deposition answers

may be superseded). Although Dye observes

that his statements when pleading guilty

do not contradict anything he has

asserted in this federal case about the

last few moments of the encounter, why

should these statements be believed when

the rest of his story is so questionable?

How can any court credit statements made

by a litigant such as Dye who has

proclaimed his willingness (indeed,

asserts an entitlement) to lie under oath

whenever deceit serves his interests? But

we need not pursue this issue, because

Dye cannot prevail even if he is entitled

to retract his prior testimony.

Two of the three defendants do not

belong in this case. In litigation under

sec.1983 a municipality is not

vicariously liable for the constitutional

torts of its employees but is answerable

only for the consequences of its

policies. See Monell v. Department of

Social Services, 436 U.S. 658 (1978).

Elkhart does not have a policy of

shooting suspects when they are down.

Although Dye contends that Elkhart did

not properly train either Wargo or Frei,

shortcomings of this kind do not

establish direct liability, because the

Constitution does not require

municipalities to conduct training

programs. Poor training is instead a

means of showing intent for those

constitutional torts where intent

matters, see Collins v. Harker Heights,

503 U.S. 115, 122-24 (1992); Canton v.

Harris, 489 U.S. 378, 388 (1988), and

excessive force under the fourth

amendment is not one of those

constitutional torts. See Graham v.

Connor, 490 U.S. 386 (1989); Lester v.

Chicago, 830 F.2d 706 (7th Cir. 1987).

Proof of failure to train officers could

be used to demonstrate that the

municipality approves (hence has a policy

of) improper conduct that training could

extirpate. Such a claim in a case like

this would depend on establishing that

the City’s policymakers knew that the

police were using objectively

unreasonable force in apprehending

suspects, yet did nothing to solve the

problem. See Canton, 489 U.S. at 388 n.8;

Lanigan v. East Hazel Crest, 110 F.3d

467, 478-79 (7th Cir. 1997); Sledd v.

Lindsay, 102 F.3d 282 (7th Cir. 1996).

Dye has not offered any evidence that use

of excessive force is common in Elkhart,

indeed has not produced evidence of even

one prior incident. Cf. Oklahoma City v.

Tuttle, 471 U.S. 808, 824 (1985)

("considerably more proof than [a] single

incident will be necessary . . . to

establish both the requisite fault on the

part of the municipality, and the causal

connection between the ’policy’ and the

unconstitutional deprivation"). Thus the

City cannot be held liable on the theory

that lack of more extensive training for

Wargo or Frei evinces a policy of using

constitutionally improper force.

As for Frei: sec.1983 applies only to a

"person" who acts under color of state

law. See Arizonans for Official English

v. Arizona, 520 U.S. 43, 69 (1997). Under

the Dictionary Act, 1 U.S.C. sec.1, "the

words ’person’ and ’whoever’ include

corporations, companies, associations,

firms, partnerships, societies, and joint

stock companies, as well as individuals",

but dogs are not on this list, whether or

not they act under color of state law.

Cf. Miles v. Augusta City Council, 710

F.2d 1542, 1544 n.5 (11th Cir. 1983) (a

cat is not a "person" for purposes of the

fourteenth amendment). A suit against a

dog poses a host of other problems. Was

Frei served with process? Did he retain

as his lawyer Lynn E. Kalamaros, who

purports to represent all three

defendants? Was Frei offered the right of

self-representation under 28 U.S.C.

sec.1654? What relief does Dye seek from

a dog--Frei’s awards, perhaps? Could Frei

claim qualified immunity? If a reasonable

person in the defendant’s position would

not have understood that what he was

doing violated the Constitution, damages

are unavailable. See Anderson v.

Creighton, 483 U.S. 635 (1987). Must we

then ask whether a reasonable dog in

Frei’s position should have understood

that he was violating Dye’s

constitutional rights? One could half

understand pursuing Frei because he is

not a party to the release. But at oral

argument, when asked why he had named a

dog as a defendant, Dye’s lawyer replied

that he deemed Frei an "employee" of the

City and was hoping to hold the City

vicariously liable for his deeds. That

not only ignores Monell but also scotches

any effort to skirt the release--for that

document covers all of the City’s

employees. (Anyway, treating a dog as an

"employee" would raise thorny issues

under the Fair Labor Standards Act.

Should Frei get time-and-a-half for

overtime? Cf. Brock v. Cincinnati, 236

F.3d 793 (6th Cir. 2001).) All things

considered, it is best to follow the

Dictionary Act and hold that a dog is not

a proper defendant in litigation under

sec.1983. (Dye’s state-law claims against

Frei fare no better; Indiana requires the

victim of a dog bite to sue the dog’s

owner, not the dog. Burgin ex rel. Akers

v. Tolle, 500 N.E.2d 763, 766 (Ind. App.

1986).)

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

obtain a plea bargain superior to the one

he entered. The district court rightly

held this argument foreclosed by

Indiana’s parol evidence rule, see Kruse

Classic Auction Co. v. Aetna Casualty &

Surety Co., 511 N.E.2d 326, 329 (Ind.

App. 1987), as well as by the principle

that one party’s unilateral expectations

do not affect a contract’s meaning. See

Ruff v. Charter Behavioral Health System

of Northwest Indiana, Inc., 699 N.E.2d

1171, 1173-74 (Ind. App. 1998). Dye does

not contend that he conveyed this

expectation to the City or any of its

lawyers. Instead of pointing to an

ambiguity in the release or to the

parties’ mutual understanding of its

effect, Dye insists that, because he was

seriously injured, there must be some

escape hatch. This is nothing but wishful

thinking; we would have to pitch not only

the release but also the body of

Indiana’s contract law out the window to

accept his view. Dye gave up his right to

sue Wargo and the City but received in

return a promise by Wargo and the City

not to sue him. Although he lacks assets

(including insurance) that would have

made suit attractive, he also knew (or

could have learned from his lawyer) that

liability on account of efforts to kill a

police officer (or even a police dog)

could not be discharged in bankruptcy.

See 11 U.S.C. sec.523(a)(6). The mutual

release enabled Dye to ensure that he

would get a fresh start at the end of his

imprisonment. This release is not the

sort of apparently irrational act that a

court should endeavor to overcome.

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. Butois 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

agree, but the only evidence he offers is

the missing signature, which just takes

us back to the statute of frauds. Dye

would have a good point if, for example,

his lawyer drafted the release, Dye

signed it, and counsel then sent the

document to the City, which ignored the

proposal. Such a sequence would

demonstrate an offer but not an

acceptance. What actually happened is

significantly different, however. During

the plea negotiations Dye’s lawyer placed

the prospect of a release on the table as

a bargaining chip. The prosecutor

responded that he would not offer any

concession in exchange for Dye’s release

of civil claims. Still, at the insistence

of Dye’s attorney, the prosecutor passed

the idea of a mutual release on to

Elkhart’s City Attorney. Elkhart’s legal

department then prepared a release, which

it transmitted to Dye’s lawyer through

the prosecutor’s office. Dye signed the

document exactly as tendered and handed

it back to the prosecutor, who returned

it to the City. Thus we know that,

although Dye brought up the idea, the

City found it acceptable and approved its

every word. Dye did not make a

counteroffer; he signed the document the

City tendered. Agreement has been

established. (Dye does not contend that

the City has failed to keep its part of

the bargain, or that the City Attorney

lacks actual authority to negotiate

agreements of this kind on Elkhart’s

behalf.)

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

correct. Yet to hold such a trial would

be to say in effect that no release of

liability under sec.1983 can be enforced,

for a release would never avert a hearing

on the merits of the plaintiff’s claim,

and all of the associated expense, even

if the state actors prevailed in the end.

That would make it harder (if not

impossible) for parties to settle their

differences without litigation.

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 sec.1983 litigation may

settle for a pittance once a suit is on

file, the same person may not settle for

a pittance before initiating litigation.

Newton, the only case on which Dye

relies, offers him little aid, for it

enforced a release of liability under

sec.1983. See also Evans v. Jeff D., 475

U.S. 717 (1986) (plaintiff may agree to

forego attorneys’ fees under 42 U.S.C.

sec.1988). Newton rejects a contention

that releases given in exchange for the

dismissal of criminal charges always are

unenforceable. All of the Justices

assumed that an ordinary mutual release

of damages liability could be enforced;

the question on the table in Newton was

whether using criminal charges to obtain

a release of civil liability would give

the state too much leverage. The Justices

who dissented in Newton expressed a

concern that prosecutors would use their

charging discretion to induce settlement.

Even a weak criminal accusation creates a

risk of such magnitude that victims of

official misconduct may surrender their

right to seek civil redress in order to

avoid a small chance of lengthy

imprisonment. That is a much more

substantial concern than any argument Dye

advances--for the prosecutor not only did

not dismiss the charges against him but

also declared that the civil settlement

would not be taken into account in the

criminal plea bargaining. Because the

majority in Newton held that even a

release-for-dismissal bargain is

enforceable, a simple mutual release of

civil liability poses no problems. And

this is an ordinary mutual release. Dye

contends that it was his "understanding"

that he would receive consideration for

the release in the form of a better plea

agreement, but, as we observed when

discussing the parol-evidence problem,

that assertion is not backed up by

written evidence--and now we add that it

is not backed up even by parol evidence

about what the City’s agents said to Dye

or his lawyer. Free-floating

"understandings" are irrelevant to the

law of contract, state or federal. If Dye

contended that the prosecutor said

something to give rise to this

"understanding" then there might be an

issue worth debating; but self-generated

beliefs have no legal consequences.

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 29

U.S.C. sec.216(c). Waivers and releases

serve the interests of both parties: a

waivable right is more valuable to its

holder than is a non-waivable right, for

the waivable right may be traded to the

other side for a benefit that the holder

values more highly than the right’s

exercise. See, e.g., United States v.

Krilich, 159 F.3d 1020 (7th Cir. 1998).

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

improper threats or was otherwise

involuntary. Recall that Dye himself

(through his lawyer) first proposed the

release, persisting after the prosecutor

said that civil liability would not be

taken into account in the plea bargaining

process. Federal law allows parties to

waive not only claims for damages, as in

Newton, but also the rights to defend

themselves (as Dye did when pleading

guilty) and to appeal from adverse

decisions. See United States v.

Mezzanatto, 513 U.S. 196 (1995); United

States v. Wenger, 58 F.3d 280 (7th Cir.

1995). Dye must keep his promise to

refrain from civil suit, just as his plea

of guilty precludes most avenues of

attacking his conviction. See Bousley v.

United States, 523 U.S. 614 (1998);

United States v. Broce, 488 U.S. 563

(1989); Mabry v. Johnson, 467 U.S. 504,

508-09 (1984).

Affirmed

DIANE P. WOOD, Circuit Judge, dissenting

in part and concurring in part in the

judgment. Both the majority and I agree

that Officer William Wargo, of the

Elkhart, Indiana police force, used

constitutionally excessive force against

Anthony Dye, when we take the contested

facts in the light most favorable to Dye.

Our disagreement centers on the legal

effect of the release Dye signed, which

the majority thinks lets both the City of

Elkhart and its employee off the hook. I

believe this conclusion fails to give

proper effect to the facts surrounding

the execution of the release and the

Supreme Court’s instructions about the

way we are to assess such documents. I

therefore respectfully dissent with

respect to the case against Wargo.

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

that are peripheral, and because the

analysis of the release must be

undertaken with the context of the

dispute in mind. Naturally, my account of

the facts presents them in the light most

favorable to Dye, the non-moving party.

In his sec. 1983 lawsuit, Dye named as

defendants Wargo, the City of Elkhart,

and (mysteriously) Frei, Wargo’s police

dog. Only the claims against the first

two defendants require our attention.

(The majority hardly needs to belabor the

point that, no matter how much of an

animal lover one may be, a dog at this

time is not a "person" amenable to a

sec.1983 suit). Dye asserted several

excessive force claims against Wargo, all

stemming from the confrontation in the

early morning hours of March 22, 1997.

Dye’s claim against the City of Elkhart

is that his injuries resulted from its

failure adequately to train Wargo (and

Frei) and that this failure to train rose

to the level of deliberate indifference

to Dye’s right under the Fourth Amendment

to be free from unreasonable seizures.

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

to her yard, pulled in and stopped the

car.

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

wounds, most of them flesh wounds on the

back or sides of his limbs. He had a

wound on the rear of his right arm, just

below the elbow, as well as on the back

of his left arm. Two bullets passed

through Dye’s right leg and he suffered a

flesh wound to his right calf. Wargo

suffered only a pinched nerve in his

neck, and Frei was unscathed.

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 sec. 1983. That

much seems indisputable to me. In fact,

in my opinion Dye’s account of Wargo’s

actions states at least two excessive

force claims for which Wargo would not be

entitled to qualified immunity. The first

is the one the majority has identified:

Wargo’s decision to continue shooting at

Dye after he was face down on the ground

without a weapon. Even if Dye initially

fired at Wargo and not the dog, as Dye

testified during his plea colloquy in

state court, once Dye was down and no

longer posed a threat to Wargo, no

reasonable police officer in 1997 could

believe that he was entitled to continue

firing at the backside of an unarmed and

disabled individual. In addition, I would

find that Dye also has a claim related to

the second point he has identified,

Frei’s unprovoked attack on Dye once Dye

had surrendered to Wargo and was

attempting to place his hands behind his

back. At that point, Dye was under

control and was trying to do what Wargo

had asked. It has long been well-

established that a police officer may not

continue to use force against a suspect

who is subdued and complying with the

officer’s orders. See Frazell v.

Flanigan, 102 F.3d 877, 884 (7th Cir.

1996) (jury could reasonably conclude

that officer who struck subdued suspect

in back with nightstick used objectively

unreasonable force and was not entitled

to qualified immunity); Ellis v. Wynalda,

999 F.2d 243, 247 (7th Cir. 1993) (force

that is reasonable while suspect poses

threat is no longer reasonable once

threat is no longer present); Priester v.

Riviera Beach, 208 F.3d 919, 927 (11th

Cir. 2000) (denying qualified immunity to

officer who in 1994 allowed his dog to

attack suspect who was lying on the

ground and not resisting). While Frei may

not be a "person," he certainly was an

instrumentality of force that Wargo was

using, and Wargo was responsible for the

dog’s actions.

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.

For example, Dye asserts that there were

whole categories of activity for which

the City of Elkhart failed to train Frei,

including how to apprehend suspects while

off a leash, but the training reports

offer unrefuted evidence that such

activities were part of Wargo and Frei’s

training. Dye offers no evidence of any

other incidents of excessive force

similar to the one he allegedly

experienced. There is thus no evidence

that the City of Elkhart was aware that

it had a problem or that its training was

not adequately protecting the rights of

civilians. I therefore agree with the

majority that Dye’s failure to train

claim cannot succeed.

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

criminal prosecution in consideration for

abandoning a civil suit that he may well

have lost." 480 U.S. at 394. Finally, in

a footnote, the majority indicated that

it would have more confidence in the

voluntariness of an agreement if it were

presented to the court for approval. Id.

at 398 n.10.

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 sec.1983 suit against Officer

Wargo and the City of Elkhart in exchange

only for their not bringing state law

tort actions against him (claims that

would have been economically foolish

given Dye’s likely judgment-proof

status); Dye received no written promise

that any charges against him would be

dismissed. This hardly seems like a

highly rational judgment, and it would

make a reasonable jury question the

voluntariness of Dye’s agreement to the

deal.

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

declared under oath that when Dye signed

the mutual release it was their

understanding, as a result of the plea

negotiations with the prosecutor, that

the waiver would indeed affect the plea

negotiations and that Dye would receive a

more favorable plea agreement in exchange

for it. The majority seizes on the word

"understanding" as a way of dismissing

this testimony, but I would not reject it

so readily. Nothing says that only

written evidence is competent for Rumery

purposes to illuminate the course of the

negotiations that led to the contested

release. And a factual exploration of

these negotiations would not raise the

specter of a mini-trial on the underlying

lawsuit between Dye and Wargo that the

release was designed to avert. It is

reasonable to infer from the testimony

Dye and his lawyer offered that the

prosecutor led Dye to believe that he

would receive a more favorable plea

agreement if he signed the release. There

is no dispute that Dye received no such

benefit.

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

Fed. R. Crim. P. 11(d) takes pains to

emphasize, a court is not entitled to

accept any plea of guilty until it

determines that the plea was voluntary.

Enforceability of a plea agreement under

state contract law is entirely beside the

point.

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

Justices that joined the majority (and

even more so the four dissenting

Justices) recognized the risk that

release-dismissal agreements could be

abused by prosecutors seeking to protect

public officials from civil liability. As

Justice O’Connor explained in her

concurrence, the availability of release

agreements may tempt public officials to

trump up charges in order to avoid

meritorious civil claims, or tempt them

"to ignore their public duty by dropping

meritorious criminal prosecutions in

order to avoid the risk, expense, and

publicity of a sec.1983 suit." Id. at

400.

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

sec.1983 to expose and punish

unconstitutional conduct by public

officials. There is also a substantial

interest in not approving practices that

have a tendency to undermine the

integrity of the criminal justice system.

On the other hand, the public has an

interest in avoiding frivolous civil

litigation, and there will be situations

in which entering into a release-

dismissal agreement will make sense both

from the defendant’s point of view and

from the point of view of prosecutors

with limited resources and other

strategic concerns.

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.