Amicus Curiae Brief — Newton v. Rumery

- BEST AVAILABLE COPY

TABLE OF CONTENTS

Issue Presented for

Interest of the Amici

Curiae

Summary of

Argument

Argument..

I. Release-Dismissal Agreements

Unacceptably Impair Access

To The Courts For Vindication

Of Constitutional Rights.......

Petitioners’ Approach

To Release-Dismissal

Agreements Does Not Adequately

Protect The Important

Constitutional Rights At

ISSUC..ccccces

A. The Circumstances

Surrounding the Pre-

Trial Execution of a

Release-Dismissal

Agreement are Inherently

Coercive

Petitioners’ "Voluntary,

Deliberate, and Informed"

Standard Would Not

Adequately Protect Defen-

dants Against Prosecutorial

Misconduct

Iil.

Cc. The Approach Approved

For Plea Bargains Is Not

Appropriate For Release-

Dismissal Agreements....---

There Are No Compelling Public

Policy Reasons For Upholding

Even Those Release-Dismissal

Agreements That Are Alleged to

Have Been Entered Into

"Voluntarily, Deliberately and

Knowingly."..+-- TWEETTTTTIT TT

A. Any Protection Afforded By

Release-Dismissal

Agreements Benefits Only

Private Persons And

Serves No Substantial

Public IntereSt...eeeeeees

B. Releuse-Dismissal

Agreements Do Not

Facilitate The Just

Resolution Of Criminal

PrOSECUCIONS...ceeeeeveees

C. Release-Dismissal

Agreements Are Not A

Proper Tool For Asserting

Constitutional Rights.....

CONCLUSION. .cceeeveseeeees wrrTe?T,

28

34

36

45

59

52

TABLE OF AUTHORITIES

CASES

PAGE

Blackledge v. Perry, 417 U.S. 21

PUPP EOE SEEOGES EC CScceecccceccccecce 12

Bordenkircher v. Hayes, 434 U.S. 357

CCPC Eh ee eee we ceccccccccccce 29

Bounds v. Smith, 430 U.S. 817

DUP PEPEEE EEG SGOCOecececcoccecececece 13

Boyd v. Adams, 513 F.2d 83 (7th Cir.

DUP EEOEUEEEESSeeSSocceceeeccecece 15,18,20

22,25

Brady v. United States, 397 U.S. 742,

(1970)... eeeeeoceaoeoeeeeeeeeeeeeeeee eee 30

Brewer v. Blackwell, 69% F.2d 387

gg 15

Bushnell v. Rossetti, 750 F.2d 298

kk cc cccce 20

Cox v. Louisiana, 379 U.S. 536

CCE es oo oc ceccccccccccce ll

Dixon v. District of Columbia, 394

F.2d 966 (D.C. Cir. 1968)......... 18,21,22

23,46,47

Hall v Ochs, 623 F. Supp. 367

(D. Mass. 1985), appeal pending.... 3,16,20

Hoines v. Barney's Club, Inc.,

28 Cal. 3d 603, 620 P.2d 628

(19BO) -cccccccccccccccccsescseses »+-15,19,47

PAGE .

|

Horne v. Pane, 514 F.Supp. 551, 552 |

(S.D.N.Y. L19Bl) cece ccccvcces ccocccceh de bOe SU

46,47

Jones v. Taber, 648 F.2d 1201

(9th Cir. 19Bl) ccccees 6006-066066000608

MacDonald v. Musick, 425 F.2d 373

(9th Cir.), cert. denied, 400 U.S.

BS2 (1970) -cccccccccccces secees oeeelL3,17,22

24,46,47

NAACP v. Button, 371 U.S. 415

(1963) coccccccccccesccccccecscces eoold

North Carolina v. Pearce, 395 U.S.

T11 (1969) ceocccccccccece 98060060604Eu

Owen v. City of Independence, 445

U.S. 622 (1980). ccccce ecosecoceccoeseds

Palhava de Varella-Cid v. Boston

Five Cents Savings Bank, 787

F.2d 676 (lst Cir. 1986)..ccceeseee 4l

Rumery v. Town of Newton 778 F.2d

66 (1985S) ccccccctoccceose TEYTTTTILT 17,20

United Mine Workers of America v.

Illinois State Bar Ass'n, 389

U.S. 217 (1967) ccccccccccccsccccceces 12

United States v. Falk, 479 F.2d 616

(7th Cir. PPPS 0606645 666 606K06e8bs Ke 12

United States v. Goodwin, 457 U.S.

368 SE 6004 668064665606000Kcé bern ll

PAGE

Wayte v. United States, 105 S.Ct.

BPOe CEE cccccscccccccceccccccscas 11,46

Wolff vy. McDonnell, 418 U.S. 539

CONSTITUTIONAL AND STATUTORY

PROVISIONS

PA

42 U.S.C. $1983. ccc eee eevee eveveees passim

OTHER AUTHORITIES

Avery and Rudovsky, Police

Misconduct Law and Litigation,

§B8.2(a) (2d. Cd. 1986). eeeeeeeeees 18

-Vvl-

E

No. 85-1449

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

TOWN OF NEWTON, et al.

Petitioners,

V.

BERNARD E. RUMERY, JR.,;

Respondent.

On Writ of Certiorari to the United States

Court of Appeals For the First Circuit

BRIEF FOR AMICI CURIAE AMERICAN CIVIL

LIBERTIES UNION AND CIVIL

LIBERTIES UNION OF MASSACHUSETTS

IN SUPPORT OF THE RESPONDENT

This brief is filed pursuant to Rule

36 of the Supreme Court Rules. All parties

have consented to the filing of this brief,

and letters expressing such consent have

been lodged with the Clerk.

ISSUE PRESENTED FOR REVIEW

This brief addresses the important

question whether a covenant not to sue

public officials for violations of

constitutional rights, in exchange for a

prosecutor's agreement to nolle prosequi

threatened criminal charges, is void per se

as against public policy.

INTEREST OF THE AMICI CURIAE

The American Civil Liberties Union

("ACLU") is a nationwide, non-partisan

organization which has over 250,000

members. The Civil Liberties Union of

Massachusetts ("CLUM") is a state affiliate

of the ACLU. Since their founding in 1920,

both ACLU and CLUM have been exclusively

concerned with the protection of the

fundamental rights and individual liberties

which are guaranteed by the constitution of

the United States.

ACLU has filed briefs in this Court,

as counsel for a party or as amicus curiae,

in many cases involving the construction

and application of 42 U.S.C. §1983 and

related civil rights statutes. Both ACLU

and CLUM have been particularly concerned

by misconduct on the part of police

officers which has resulted in violations

of constitutional guarantees. CLUM has

challenged on several occasions the type of

release-dismissal agreement which is at

issue in his case, most recently in Hall v.

Ochs, 623 F.Supp. 367 (D. Mass. 1985),

appeal pending, in which the court held

invalid a release extracted from a prisoner

who had been arrested without probable

cause and assaulted by officers of the

Milton, Massachusetts, Police Department.

SUMMARY OF ARGUMENT

An agreement for dismissal of criminal

charges in exchange for a covenant by a

potential criminal defendant not to sue

—— ee — SS

public officials under 42 U.S.C. §1983

unacceptably impairs a person's First

Amendment right of access to the courts to

vindicate claims of constitutional

violation and undermines the remedy for

such violations which has been provided by

Congress in 42 U.S.C. §1983.

The decision below of the Court of

Appeals for the First Circuit that

release-dismisal agreements are void per se

is squarely in line with principles

established by decisions of this Court that

a person's First Amendment right of access

to the courts for vindication of federally

guaranteed rights may not be impaired by a

decision to prosecute criminall’ a person

because of his or her exercise of federal

rights. Holding release-dismissal

agreements void per se provides full

opportunity for public airing of charges of

police and other official misconduct and

prevents compromise of the criminal justice

System by dismissals of criminal complaints

based on agreements shielding public

officials from civil liability arising out

of such complaints -- a matter wholly

extraneous to the public interest at issue

in a criminal proceeding.

Petitioners' position that release-

dismissal agreements should be upheld if

they are “voluntary deliberate, and

informed" does not adequately protect the

First Amendment Right of access to the

courts to vindicate claimed violations of

federally protected rights. No pre-trial

release-dismissal agreement can be

voluntary because the circumstances in

which it is entered into by a person

threatened with criminal charges are

inherently coercive. Because of the risk

of incarceration, fines, and civil

disabilities, even an innocent defendant is

virtually compelled to accept the terms of

a pre-trial release~dismissal agreement.

The "voluntary, deliberate, and

informed" standard would not invalidate

release-dismissal agreements tainted by

prosecutorial misconduct because that

standard, as applied by the courts, focuses

on the defendant's state of mind and his or

her opportunity to make a considered

decision in light of knowledge of the basic

facts of the situation and not on the

conduct and motivation of the prosecutor.

Judicial acceptance of a “voluntary,

deliberate, and informed" standard for

upholding plea bargains does not justify

use of such a standard for judging the

validity of release-dismissal agreements.

A plea bargain properly focuses only on

concerns involved in the criminal

proceeding, and the “voluntary, deliberate

and informed" standard is applied to plea

bargains so the court may be assured that

the defendant's guilty plea is truthful. A

release-dismissal agreement, on the other

hand, focuses primarily on the private

concerns of those officials seeking

protection from civil action by the

potential criminal defendant, which are

extraneous to the criminal proceeding.

Furthermore, the "voluntary, deliberate,

and informed" standard has nothing to do

with the public policy justifications

claims for use of that standard to judge

the validity of such agreements. That

Standard does not sort out meritorious

Civil claims from those without merit, does

not protect only those law enforcement

officials who act in good faith, and does

not validate only release-dismissal

agreements which result ina "just"

resolution of the criminal proceeding.

In view of the pernicious interference

by release-dismissal agreements with the

First Amendment right of access to the

courts to vindicate federal rights, any

such agreements can be justified, if at

all, only if they serve compelling public

policy needs that outweigh the

constitutional rights with which they

interfere. However, such agreements serve

only the private interests of the public

officials and other persons whose conduct

is protected from civil suit and public

scrutiny by such agreements, and

petitioners have shown no public interest

that would be served by upholding such

agreements as are "voluntary, deliberate

and informed.

Such agreements which are entered into

voluntarily, deliberately and knowingly do

not serve to protect only law enforcement

personnel who act in good faith to

diligently enforce the law. The

"“yoluntary, deliberate, and informed"

standard would not distinguish between law

enforcement personnel who act in good faith

from those who do not and would protect,

improperly, the latter as well as the

former. Such agreements would not

encourage broad-based citizen involvement

and assistance in the administration of

justice because when victims and witnesses

report possible crimes they have no idea

whether a release-dismissal agreement will

ever be obtained or, if obtained, would be

upheld under a “voluntary, deliberate, and

informed" standard, which takes no account

of the nature of the conduct of the victims

Or witnesses. The legal system provides

protections for law enforcement personnel

and private citizens by other means more

direct, relevant, and effective than

occasional, after-the-fact release-

dismissal agreements.

Release-dismissal agreements which are

“voluntary, deliberate, and informed" do

not provide prosecutors and defendants with

a vehicle for achieving a “just resolution"

of certain cases. Whether such an

agreement relating to an extraneous civil

matter is “voluntary, deliberate, and

informed" has nothing to do with whether

resolution of the criminal case is “just.”

A prosecutor's obligation under law is to

exercise his or her discretion whether to

prosecute solely in accord with the public

interest served by the criminal justice

system and not on the basis of a

defendant's agreement to protect the

private interest of certain individuals by

agreeing not to institute a civil action

against them.

Finally, release-dismissal agreements

are not a proper tool for the assertion by

potential defendants of their

constitutional rights. Such agreements

provide an inadequate and incomplete remedy

for violations of individual rights. They

deprive the victim of all other

compensation and defeat the deterrent goals |

of the civil remedy provided by 42

U.S.C.§1983.

ARGUMENT

I. RELEASE-DISMISSAL AGREEMENTS

UNACCEPTABLY IMPAIR ACCESS TO THE

COURTS FOR VINDICATION OF

CONSTITUTIONAL RIGHTS.

An agreement for dismissal by a

prosecutor of criminal charges in exchange

for a covenant by a potential criminal

defendant not to bring a civil action

against public officials under 42 U.S.C.

§1983 unacceptably impairs a person's First

Amendment right of access to the courts to

vindicate claims of constitutional

violation and undermines the remedy for

such violations which has been provided by

Congress in 42 U.S.C. §1983.

It is firmly established by the

decisions of this Court that a decision to

prosecute may not be based on the exercise

by the potential defendant of protected

constitutional or statutory rights. See

€e.g., Cox v. Louisiana, 379 U.S. 536, 557-

5958 (1965); Wayte v. United States, 105

S.Ct. 1524, 1531 (1985); United States v.

Goodwin, 457 U.S. 368, 372 (1982);

Blackledge v. Perry, 417 U.S. 21, 27-29

(1974); North Carolina v. Pearce, 395 U.S.

7ll, 723-726 (1969); United States v. Falk,

479 F.2d 616, 618-619, 623 (7th Cir. 1973).

The prosecution of a criminal case, or the

threat of such prosecution, for the purpose

of preventing or deterring the defendant

from asserting a civil claim against the

arresting officers or the prosecutor is

plainly a prohibited interference with

constitutionally guaranteed rights.

A cornerstone of our system of

constitutional government is the right of

access to the courts to seek redress for

violations of rights guaranteed by federal

law. See In Re Primus, 436 U.S. 412, 422-

432 (1978); United Mine Workers of America

v. Illinois State Bar Ass'n, 389 U.S. 217

(1967); NAACP v. Button, 371 U.S. 415

(1963) (all holding that First Amendment

rights are impaired by restrictions on

access to the courts); see also Wolff v.

McDonnell, 418 U.S. 539, 579 (1974) ("The

right of access to the courts ... is

founded in the Due Process Clause and

assures that no person will be denied the

opportunity to present to the judiciary

allegations concerning violations of

fundamental rights."); Bounds v. Smith, 430

U.S. 817 (1977).

Just as a prosecution which is brought

in retaliation for the exercise of

federally guaranteed rights is an

impermissible burden on those .ights, a

prosecution which is pursued following the

defendant's refusal to execute a release

absolving the police and other public

officials of all civil liability is a

blatant interference with assertion of

rights guaranteed by the First Amendment

and by section 1983. Thus, for example, in

MacDonald v. Musick, 425 F.2d 373 (9th

Cir.), cert. denied, 400 U.S. 852 (1970),

the court of appeals granted habeas corpus

relief te a defendant who was convicted of

resisting arrest after the prosecutor

withdrew a motion to dismiss criminal

charges when the defendant refused to

stipulate that there was probable cause for

his arrest. In ordering that the defendant

be released from custody, the court held

that he had a right to seek redress for his

claim that he had been badly beaten by the

police, and that the purpose of the

criminal prosecution was to preclude his

exercise of that right.

[T]he attempt, by imposing the

stipulation as a condition to the

dismissal of the drunk driving charge,

was to hamper MacDonald in asserting,

by civil action, both state and

federal civil rights. And the revival

of the resisting arrest charge was the

bludgeon behind this attempt.

Id. at 377.

Moreover, such efforts to bar the

assertion of federal claims are completely

at odds with the goals of Congress in

enacting 42 U.S.C. §1983, which "was

intended not only to provide compensation

to the victims of past abuses, but to serve

as a deterrent against future

constitutional deprivations as well." Owen

v. City of Independence, 445 U.S. 622, 651

(1980).

For these reasons, most courts which

have considered the validity of releases of

Ccivil-rights claims obtained in exchange

for dismissal of criminal charges have

found them to be invalid. E.q., Boyd v.

Adams, 513 F.2d 83 (7th Cir. 1975); Horne

Vv. Pane, 514 F, Supp. 551, 552 (S.D.N.Y.

1981); cf&. Brewer v. Blackwell, 692 F.2d

387 (Sth Cir. 1982); contra, Hoines v.

Barney's Club, Inc., 28 Cal. 3d 603, 620

P.2d 628 (1980) (4-3 decision).

The decision in this case of the Court

of Appeals for the First Circuit holding

that release-dismissal agreements are void

per se is squarely in line with these

principles. It recognizes that only a

blanket rejection of such agreements can

adequately protect an individual’s access

to the courts to vindicate violations of

constitutional rights. Holding such

agreements void per se also provides full

opportunity for public airing of charges of

police and other official misconduct and

prevents compromise of the integrity of the

criminal justice system from dismissals of

criminal complaints based on agreements

shielding public officials from civil

liability arising out of such complaints --

a matter wholly extraneous to the public

interest at issue in the criminal

proceeding.

II. PETITIONERS' APPROACH TO RELEASE-

DISMISSAL AGREEMENTS DOES NOT

ADEQUATELY PROTECT THE IMPORTANT

CONSTITUTIONAL RIGHTS AT ISSUE.

A. The Circumstances Surrounding the

Pre-Trial Execution of a

Release-Dismissal Agreement are

Inherently Coercive.

The purpose of release-dismissal

agreements, as the opinion of the court of

appeals implicitly recognized, is not to

protect the public official who is

blameless from the burden of defending

against "baseless" or “unwarranted"

litigation. "(W]here the prosecution acts

reasonably and has a fairly good case

against the claimant .. . a good defense

to a civil rights claim will exist and the

need for a release will not come into

play." Rumery v. Town cf Newton, 778 F.2d

66, 70 (1985).

The release takes on importance,

however, when a colorable civil rights

Claim may be asserted. A survey of the

reported decisions shows that this is

frequently the case. See, e.qg., Hall v.

Ochs, 623 F.Supp. 367 (D. Mass. 1985),

appeal pending (black man assaulted by

white police officers and arrested without

probable cause); MacDonald v. Musick, 425

F.2d 373 (9th Cir.), cert. denied, 400 U.S.

852 (1970) (defendant alleged that “he was

badly beaten by the police"); Boyd v.

Adams, 513 F.2d 83, 85 (7th Cir. 1975)

(civil rights complaint alleged that police

beat and abused a pregnant woman); Dixon v.

District of Columbia, 394 F.2d 966, note 2

(D.C. Cir. 1968) (retired black police

officer charged two white police officers

with brutality); Horne v. Pane, 514 F.Supp.

551, 552 (S.D.N.Y. 1981) (complaint alleged

that defendant verbally abused plaintiff on

account of his race, beat him, arrested him

and left him handcuffed to a chair for

hours). Indeed, in cases involving serious

police misconduct, the underlying charge is

often a "cover charge" which has been

brought to protect the offending officers.

Avery and Rudovsky, Police Misconduct: Law

and Litigation, §8.2(a) (2d. ed. 1986).

The effectiveness of the release-

dismissal agreement in shielding police

misconduct derives from the fact that the

defendant is virtually compelled to accept

the terms of the agreement. As Justice

Tobriner observed in his thoughtful dissent

in Hoines v. Barney's Club, Inc., 28 Cal.

3d 603, 620 P.2d 628, 637 (1980) (Tobriner,

J., dissenting), "(t]he threat to maintain

a criminal prosecution is, however,

necessarily coercive. An innocent

defendant may well prefer to surrender his

right to redress for false arrest rather

than undergo the risk, expense and

inconvenience of a criminal trial." The

defendant in a criminal case faces the

possibility of incarceration, fines and

Civil disabilities. Even the defendant who

is wholly innocent of criminal activity

will be reluctant to refuse the offer of

dismissal under these circumstances. This

lis not, as the court below and numerous

EE

other courts have concluded, an uncoerced

choice. Rumery v. Town of Newton, supra at

69-70; Boyd v. Adams, supra at 87-88; Hall

v. Ochs, supra; Horne v. Pane, supra at

552.1

B. Petitioners' "Voluntary,

Deliberate and Informed” Standard

Would Not Adequately Protect

Defendants Against Prosecutorial

Misconduct.

Even if the circumstances surrounding

all release-dismissal agreements were not

regarded as inherently coercive such

agreements are void per se as against

public policy because they are subject to

possible prosecutorial misuse against which

the ad hoc standard of “voluntary

deliberate, and informed" would not guard.

1 Neither Bushnell v. Rosetti, 750 F.2d 298 (4th

Cir. 1984), nor Jones v. Taber, 648 F.2d 1201 (9th

Cir. 1981), is inconsistent with the majority view

that the proposal of a release-dismissal prior to

trial in a criminal case is “inherently coercive."

The agreement at issue in Bushnell was signed after

the court had found the defendant guilty on all

charges. In Jones, there was no criminal

prosecution and no “release-dismissal" agreement.

The sole issue was the voluntariness of the release

executed by the plaintiff.

- 20 -

ee

+ eee

— $$ ——$ __ —_ —-— — oe

Petitioners do not deny that release-

dismissal agreements can be misused and can

serve as vehicles for prosecutorial

misconduct. (Pet. Br. 25.) This concern

has led several courts to criticize

attempts to obtain releases of civil claims

in exchange for dismissal of criminal

charges for their pernicious impact on our

system of criminal justice. In Dixon v.

District of Columbia, 394 F.2d 966, 969

(D.C. Cir. 1968), the court of appeals

Said:

the major evil of these agreements

is not that charges are sometimes

dropped against people who probably

should be prosecuted. Much more

important, these agreements suppress

complaints against police misconduct

which should be thoroughly aired in a

free society. And they tempt the

prosecutor to trump up charges for use

in bargaining for suppression of the

complaint. The danger of concocted

charges is particularly great because

complaints usually arise in connection

with arrests for extremely vague

offenses such as disorderly conduct or

resisting arrest.

These words were quoted with approval in

Boyd v. Adams, 513 F.2d 83, 89 (7th Cir.

1975).

Petitioners acknowledge the

impropriety of the releases given in the

three decisions on which the court of

appeals relied, Dixon v. District of

Columbia, 394 F.2d 966 (D.C. Cir. 1968);

MacDonald v. Musick, 425 F.2d 373 (9th Cir.

1970); and Boyd v. Adams, 513 F.2d 83 (7th

Cir. 1975). (Pet. Br. 24) But, they argue,

“in each of those cases, the releases would

have been invalid under the voluntary,

deliberate and knowing standard applied by

the trial court in the case at bar.” (Pet.

Br. 25) In fact, there is no reason to

believe that those releases would have been

found to be involuntary, and the standard

suggested by the petitioners would have

left the victims of abuse in those cases

without an effective remedy.

Dixon v. District of Columbia, supra,

involved a retaliatory prosecution for

traffic violations, brought after the

defendant allegedly reneged on an agreement

not to file complaints of misconduct

against the police officers who stopped

him. Id. at 967. Notwithstanding what the

court described as "blatant Government

misconduct," Id. at 970, the release-

dismissal agreement would almost surely

have been upheld under the petitioners'

Standard. The agreement was entered into

two days after the defendant was stopped by

police officers for alleged traffic

violations, before the defendant was either

charged or ticketed, let alone

incarcerated. Id. at 968. There are no

facts which suggest that the defendant's

decision to enter into the agreement was

influenced by anything offer than making

the "difficult decision" of choosing the

certainty of dismissed criminal charges

over the uncertainty of prevailing both on

a plea of innocence in a criminal trial and

a section 1983 claim against the police

officers. Petitioners themselves

characterize this type of choice as

uncoercive, that is, voluntary, deliberate,

and informed. (Pet. Br. 31-32).

Similarly, MacDonald v. Musick, supra,

involved the invalidation of a retaliatory.

amendment to a criminal complaint upon the

defendant's refusal to stipulate to

probable cause and thereby shield arresting

officers from civil liability for false

arrest. MacDonald did not determine that

the circumstances surrounding the proposal

to stipulate to probable cause were

coercive in any sense other than that the

threat of criminal prosecution itself

amounted to coercion. Id. at 375 ("the

Situation is made no better by the fact

that here the record indicates that it was

the court that asked MacDonald whether he

would stipulate. Rather it makes it worse.

It brings the court to the aid of the

prosecutor in coercing the defendant into

agreeing to what amounts to a forfeiture of

his civil rights") (emphasis added).

In the single civil case cited by

petitioners as an example of a litigation

of a release which would have been invalid

under the voluntary, deliberate and knowing

Standard, (Pet. Br. 24), the holding rested

on recognition of the threat of the

consequences of criminal charges as

inherently coercive. Boyd v. Adams, 513

F.2d 83, 88 (7th Cir. 1975). The court of

appeals based its conclusion of duress on

the plaintiff's testimony that she "thought

she would again be put in jail" if the

Criminal charges were not dropped because

she would not be able to pay the fines

required upon conviction. Id. at 87-88.

Indeed, the district court in Boyd,

applying the standard urged by the

petitioners, found that the release had

been "that plaintiff had knowingly waived

her right to pursue civil claims against

defendants and . . . no coercion or duress

of any sort had been exerted upon her.”

Id. at 87. The circuit court's reversal,

approved by the petitioners, rested on

characterizing plaintiff's fear of the

consequences of a criminal prosecution as

coercion. 2

In sum, the courts in the Dixon,

MacDonald, and Boyd cases invalidated the

releases not because of prosecutorial

misconduct but because of their view that

the environment of arrest and threat of

The reversal also depended on an explicit

rejection of the proposition that the coercive

character of the situation could be negated because

release-dismissal negotiations were initiated by

plaintiff's counsel. Id. at 88

Criminal charges im which such releases are

obtained is inherently coercive -- a view

which petitioners challenge.

At the end of their argument on

prosecutorial misconduct petitioners

tacitly admit that the “voluntary,

deliberate and informed" standard advocated

by them is not adequate to identify

prosecutorial misconduct when they say,

"Public policy concerns are met if the

charge is supported by evidence and the

primary purpose of the prosecutor is not to

cover up police misconduct." (Pet. Br. 25)

To determine that, of course, would require

greatly expanding the scope of the inquiry

beyond the confines of the “voluntary,

deliberate and informed" standard to

include an examination of the entire

evidentiary basis of the proposed criminal

charge, a full examination of all the facts

Surrounding the potential defendant's claim

of police misconduct, and a full

——

ee

examination of the facts and reasons

alleged to underlie the prosecutor's

decision to enter into the release-

dismissal agreement. Petitioners advance

no serious proposal that an ad hoc approach

should really be so expansive. Indeed,

Such an expansive inquiry would undercut

their argument that their approach would

quickly and inexpensively dispose of many

Civil rights actions (all of them, in

petitioners' eyes, groundless) and would

not burden the courts with administrative

costs and problems.

C. The Approach Approved for Plea

Bargains Is Not Appropriate for

Release-Dismissal Agreements.

Petitioners’ final effort to brush

aside the policy concerns of the circuit

court is to seek to analogize release-

dismissal agreements to plea-bargaining

agreements. Petitioners argue that the

policy considerations bearing on release-

dismissal transactions are analogous to

pe SS ee

those bearing on plea-bargaining

transactions so that decisions of this

Court subjecting the latter to a

“voluntary, deliberate and informed"

Standard support the same approach to

release-dismissal agreements.

The argument, while superficially

appealing, does not withstand analysis. A

plea bargain is very different from a

release-dismissal agreement and is designed

to serve different public policy

considerations. A plea bargain necessarily

presupposes that the prosecutor has just

cause, and an adequate basis, for

prosecuting some crime, and the negotiation

is properly confined to considerations

involved in the criminal proceeding itself

and not matters extraneous thereto. See

Bordenkircher v. Hayes, 434 U.S. 357, 363

at note 8 (1978). The protective

requirement that a defendant's guilty plea

in a plea bargain be “voluntary,

deliberate, and informed" is geared

primarily to ensuring that the defendant's

plea of guilty is truthful. See Brady v.

United States, 397 U.S. 742, 757-758

(1970).

In the case of a release-dismissal

agreement, on the other hand, there is no

necessary presupposition ttat a prosecutor

has just cause to prosecute anything, as

indicated by the prosecutor's willingness

to drop all charges and his concern that

the conduct of law enforcement officials in

bringing the charges has been such as to

require protection from civil action

through a release. In such a case, a

prosecutor's statement that he will

prosecute criminal charges unless the

defendant signs a release of possible civil

action is indistinguishable from an

impermissible retaliatory prosecution.

Furthermore, unlike the plea-bargain, in

the release-dismissal situation the

negotiation necessarily focuses primarily

not on matters involved in the criminal

proceeding itself, but on the wholly

extraneous matter of a possible civil

action that may not even have been

instituted.

Most critical to the distinction

between the plea bargain and the release-

dismissal agreement is that while the

“voluntary, deliberate and informed"

standard is relevant to the objective of

ensuring that the defendant's guilty plea

is truthful, that standard, as applied to

the release-dismissal agreement, has

nothing to do with what the petitioners

cite as the policy justifications for using

that standard to judge the validity of such

an agreement. They emphasize repeatedly

that such agreements protect law

enforcement personnel and governmental

entities from unjustified civil actions and

enable defendants to obtain quickly a

desired terminatio:

prosecution. Yet the

"voluntary, deliberate anc formed" urged

by petitioners does not distinguish between

—

’

"justified" and "unjustified" civil actions

and “justified" and “unjustified" criminal

prosecutions. The conduct of law

enforcement personnel can be the most

outrageous imaginable, and the criminal

charges can be wholly fabricated, and if

the release-dismissal is "voluntary,

deliberate, and informed" the release would

stand. That standard, which takes no

account of the possible misconduct which

might form the basis of the civil rights

claim and no account of the supportability

of the criminal charges, inherently would

permit precisely the kind of police and

prosecutorial misconduct with. which the

circuit court was concerned.

'

'

.

'

’

'

—-—_ or Ci

In sum, plea-bargaining, as approved

by this Court, focuses wholly on the public

interest involved in the criminal

proceeding itself -- a matter within the

scope of the prosecutor's proper concerns

-- whereas release-dismissal agreements

focus on matters extraneous to the criminal

proceeding and involve the prosecutor in

resolution of civil actions in which he has

no stake and no proper role. The

differences between plea bargains and

release-dismissals are accompanied by

different public policy considerations

which make an approach based on a

“voluntary, deliberate, and informed"

standard appropriate for plea bargains but

wholly inappropriate for release-dismissal

agreements.

Plea bargaining serves important

public interests in the fair,

individualized, efficient and effective

functioning of the criminal justice system.

=

Y

Release-dismissal agreements serve no such

public interest but compromise the criminal

justice system solely to protect private

interests against civil suits. Use of the

"voluntary, deliberate and informed"

standard to judge the validity of release-

dismissed agreements does not serve a

Significant public interest and does not

protect civil rights claimants against what

all parties recognize as the potential for

abuse of release-dismissal agreements.

III. THERE ARE NO COMPELLING PUBLIC POLICY

REASONS FOR UPHOLDING EVEN THOSE

RELEASE-DISMISSAL AGREEMENTS THAT ARE

ALLEGED TO HAVE BEEN ENTERED INTO

“VOLUNTARILY, DELIBERATELY AND

KNOWINGLY."

Petitioners "do not deny that

’

'

release-dismissal agreements can be

misused" (Pet. Br. 25) and the amici curiae

Americans for Effective Law Enforcement,

Inc.; The International Association of

Chiefs of Police, Inc. and The National

District Attorneys Association, Inc., ina

brief in support of the petitioners,

"concede that many abuses have occurred,

and that a significant number of releases

have been the product of some level of

coercion..." (AELE Amici Brief 3).

In view of the admitted potential for

misues of release-dismissal agreements, and

their pernicious foreclosure of the right

of access to the courts to vindicate

federally guaranteed rights, the only

conceivable basis for upholding release-

dismissal agreements would be if they

served compelling public-policy needs that

outweigh the consitutional rights with

which they inherently interfere.

Petitioners concede that release-

dismissal agreements cannot be justified on

the basis of benefit to individual

interests such as those of individual

complainants, police officers or

prosecutors because agreements resolving

Criminal proceedings must vindicate and

serve the public interest rather than

individual interests. (See Pet. Br. 12-

13). Rather, petitioners seek to justify

release-dismissal agreements by fabricating

claimed benefits to the public interest.

There is no substance to any or these

claims.

A. Any Protection Afforded by

Release-Dismissal Agreements

Benefits only Private Persons and

Serves No Substantial Public

Interest.

Foremost among the benefits to the

public interest claimed by the petitioners

is the protection of local law enforcement

officials and private complainants from

civil lawsuits arising from their

involvement or assistance in the

administration of the criminal justice

system. (Pet. Br. 13). Release-dismissal

agreements, petitioners suggest, serve "the

public interest in effective law

enforcement, in attracting and motivating

dedicated police personnel and in

|

.

encouraging victims of crime to report

offenses freely and to assist law

enforcement Officials..." (Pet. Br. 13).

However, petitioners fail to

demonstrate how release-dismissal

agreements make any such significant

contribution to this public interest. It

cannot be contended -- and petitioners do

not so state -- that upholding some

release-dismissal agreements on the basis

of criteria that have nothing to do with

the conduct of law enforcement officials or

private complainants in reporting, and

developing evidence for prosecution of,

criminal offenses plays any significant

role in “attracting and motivating

dedicated police personnel and in

encouraging victims of crime to report

offenses freely and to assist law

enforcement officials." When the police

and victims of crime develop evidence for

prosecution of a possible criminal offense

$$$ Eee eee eee ~ ee —iSCS

they have no idea whether the possible

offense will be prosecuted; if so, what the

outcome will be; if not, whether a

release-dismissal agreement will be

obtained; if obtained, whether it will be

upheld; or if, regardless of anything else,

the defendant will seek to file a civil

rights action anyway. As the standard

rroposed by petitioners for upholding a

release-dismissal agreement -- that it be

“voluntary, deliberate, and informed" (Pet.

Br. 35) -- has no relationship to the

conduct of the police or the victim in

reporting and investigating the alleged

crime, such persons cannot shape that

conduct in any way by the prospect that a

release-dismissal agreement might be

obtained and upheld.

With so many imponderables, it is

obvious that an after-the-fact release-

dismissal agreement that would be upheld as

proper under petitioners' standard would

a

not provide the type of protection on which

the beneficiaries could necessarily rely in

shaping their conduct. Furthermore, in

many cases it may be protection to which

they are not fairly entitled. Petitioners’

“voluntary, deliberate, and informed"

standard for upholding release-dismissal

agreements does not address the question

whether in any particular case it serves

the public interest to protect the

particular law enforcement officials from

possible civil action for the particular

conduct involved. 43

The legal system has recognized the

need for legitimate forms of protection of

law enforcement officials and private

citizens who become involved in law

enforcement efforts and, as petitioners

recognize, has provided such protection by

means far more direct, relevant, and

— eee aaa aaa aaa a

3Indeed, there may well be cases where the

prosecutor's obligation is not to protect such

officials but to prosecute them criminally f

their conduct.

effective than occasional after-the-fact

release~dismissal agreements. Such

protection includes indemnity statutes for

law enforcement officials, witness-

tampering statutes, various privileges and

immunities for individuals who report

Suspected criminal activity to law

enforcement officials, and, most

Significantly, the "good faith”

immunity defense available under 42 U.S.C.

§1983. (See Pet. Br. at 13-14).

Petitioners endeavor to discount the

value of these protections by asserting

"the harsh reality that individuals,

governments, and society frequently pay a

high price in litigation, regardless of the

merit of claims or the eventual outcomes of

the cases." (Pet. Br. 14). That, of

course, is true of any litigation, whether

involving governmental or private

litigants. But the legal system has

rightly determined that the proper way to

minimize such costs is to do what can be

done directly through establishment of

appropriate defenses limiting liability and

through procedural devices such as summary

judgment for early termination of non-

meritorious claims. Summary judgment has

been used successfully to terminate civil

rights cases in defendants' favor without

trial, including cases where the

determinative issue was probable cause for

defendants to prosecute alleged criminal

activity. Palhava de Varella-Cid v. Boston

Five Cents Savings Bank, 787 F.2d 676 (lst

Cir. 1986) (held, on summary judgment, that

undisputed facts established probable cause

even where the plaintiff had been acquitted

of all criminal charges).

The fatal flaw in this policy

justification for petitioners' approach to

release-dismissal agreements is that the

standard for upholding a release-dismissal

agreement -- that it be "voluntary,

deliberate, and informed" -- makes no

distinction between meritorious and non-

meritorious civil rights claims. That

standard focuses only on the defendant's

state of mind in entering into the

release-dismissal agreement and not at all

on whether the defendants' civil rights

claims are, or may be, meritorious.

Indeed, the merit of claims based on

alleged violations of important

constitutional rights cannot, and should

not, be judged by evaluation of the

propriety of a release-dismissal agreement.

The merit of such important claims should

be judged by nothing less than the judicial

procedure for litigating such claims

provided in section 1983. It is only

through such procedures -- and not through

ad hoc evaluation of release-dismissal

agreements -- that the meritorious civil

rights claims can fairly and legitimately

be sorted out from the non-meritorious

claims.

Petitioners assert that

“municipalities can, and often are, in

effect, held hostage by vindictive

claimants regardless of the legal merits of

their claims." (Pet. Br. 16). But

petitioners cite no authorities, no facts,

no statistics to support this claim. And

they provide no basis for concluding that

the approach to release-dismissal

agreements which they propose will in fact

eliminate whatever cases there may be, if

any, in which municipalities are so held

"hostage."

Petitioners and the AELE amici curiae

complain that governmental entities are

bearing increased liability insurance

costs, or suffering from unavailability of

liability insurance, because’of the costs

of defending even non-meritorious civil

rights claims. (Pet. Br._15). But, as the

AELE amici curiae's own brief shows, these

insurance problems are not the result of

increased costs of defending against non-

meritorious claims. As the cause of the

problem, "insurance companies blame a

series of multi-million dollar judgments

against other cities..." (AELE Amici Brief

6}. Obviously the cause of the liability

insurance problem is not the costs of

defending against non-meritorious civil

rights claims but the payment of large

judgments in meritorious claims. It is

those costs of meritorious civil rights

claims with which petitioners and the AELE

amici are, and should be, truly concerned.

But it is precisely those costs -- incurred

in compensating violations of individuals’

constitutional rights -- which no ad hoc

evaluation of release-dismissal agreements

should be permitted to preclude.

B. Release-Dismissal Agreements Do

Not Facilitate the Just Resolution

of Criminal Prosecutions.

Next petitioners seek to find a

public-policy justification for their

approach to release-dismissal agreements by

the claim that such agreements provide

"both prosecutors and defendants with an

effective and practical vehicle for

achieving a just resolution of certain

cases." (Pet Br. 16.)

Again the tool -- upholding release-

dismissal agreements which are voluntary,

deliberate, and informed -- has no

relationship (except by coincidence) to the

specified public interest, "a just

resolution of certain cases." Whether the

resolution of the particular case is "just"

an entirely different inquiry from

whether the release-dismissal agreement was

ntary, deliberate, and informed. Such

an agreement may be all of those things

without serving in the slightest to ensure

that the resolution of the case is “just.”

Exercise of a prosecutor's discretion

is controlled by his or her duty to pursue

the public interest in justice, without

regard for a potential defendant's

agreement not to institute a civil action.

Accord, Dixon v. District of Columbia,

Supra at 969; MacDonald v. Musick, supra

at 375; Horne v. Pane, supra at 552. The

prosecutor may legitimately determine that

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ion of a particular criminal

complaint will not further this public

any of the following reasons:

if ne lacks a good faith belief that

the case is of low generai

if the charge is

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determines on these, or on any other

legitimate grounds relating to the case and

its role in the criminal justice system,

that the interests of justice require a

dismissal of the charges, then a threat to

prosecute if the potential defendant

refuses to execute a release of any civil

claims violates the prosecutor's duty to

serve the public interest. See Dixon v.

District of Columbia, supra at 969;

MacDonald v. Musick, supra at 375; Hoines

Vv. Barney's club, Inc., supra at 635-636

(Tobriner, J., dissent); Horne v. Pane,

Supra at 552. Conversely, it would be a

gross dereliction of that duty if a

complainant presented a prosecutable case

involving a serious criminal offense but

the prosecutor declined to prosecute

because he was able to obtain a release of

Civil-rights claims aganst law enforcement

officials who were more concerned about

such claims than about the criminal

offense.

Contrary to petitioners’ claim, the

facts of the present case do not in the

least demonstrate “the desirability of

having a release-dismissal option available

to defendants and prosecutors." (Pet. Br.

17). What they demonstrate is that, quite

apart from the release-dismissal agreement,

there was every reason not to prosecute and

the prosecutor would probably have filed a

nolle prosequi of the case without the

agreement except that “Rumery's lawyer was

threatening civil action." (Pet. Br. 19)

In response to the allegation by Rumery’s

lawyer of a violation of Rumery's

constitutional rights, the prosecutor then

insisted on the release-dismissal agreement

to protect the municipality, its police

chief and, supposedly, a complainant.

Obtaining this agreement somehow, according

ee CS

to petitioners, “allowed the prosecutor

sufficient discretion to arrive at a just

resolution of the charges against Rumery

hile protecting a fragile but vital

witness." (Pet. Br. 19)

If entry of nolle prosegui was 2a "just

resolution of the charges against Rumery,"

however, they should simply have been

dropped -- without bringing in the

extraneous consideration of protecting

anyone against a civil action. Obtaining

protection from civil litigation is not a

proper part of the prosecutor's function to

vindicate public rights through the

Criminal justice system. This Court should

not permit a prosecutor's discretion

whether to prosecute to be based on whether

a potential criminal defendant agrees to

give a release of possible civil claims.

—

C. Release-Dismissal Agreements Are

Not a Proper Tool for Asserting

Constitutional Rights.

Petitioners’ final try at finding a

public-interest justification for the ad

hoc approach to release-dismissal

agreements is the feeblest of all -- the

claim that such agreements benefit persons

charged with crime by providing them with

an “effective, inexpensive, and accessible

mechanism" for enforcing their con-

stitutional rights pursuant to 42 U/S.C.

§1983. (Petitioners do, at least

acknowledge that, "at first blush, the

notion that a waiver of rights can serve

as a mechanism for enforcing those rights

appears oxymoronic.") (Pet. Br. 20).

Petitioners’ suggestion that "Rumery

utilized his constitutional rights ... to

create leverage with which he obtained a

complete dismissal of the charges against

him" (Pet. Br. 20-21) appears to be at odds

with petitioners’ earlier description of

the prosecutor's decision as "a reasonable

exercise of discretion in the public

interest" and "a compassionate, humane

decision as to the victim." (Pet. Br. 18.)

From these conflicting descriptions it is

difficult to know what petitioners really

Claim to have happened. If Rumery did

indeed use the threat of a section 1983

Civil action to “leverage” a complete

dismissal of criminal charges that would

not otherwise have been dismissed, such

"leverage" exercised in Rumery's private

interest was improperly permitted to defeat

the public interest in prosecution of a

Supportable charge of witness tampering.

The key point, however, is that

obtaining dismissal _f— a criminal charge

cannot be viewed as an appropriate remedy

for victims of civil rights violations.

Because release-dismissal agreements

accomplish only a criminal dismissal for

the victim, they address only a single

consequence of government misconduct -- the

improperly brought criminal charge. They

deprive the victim of all other

compensation for constitutional torts and

defeat the deterrent goals of civil

remedies. For these reasons, the

vindiction of civil rights should be left

to the remedy expressly provided by

Congress under 42 U.S.C. §1983.

CONCLUSION

For the foregoing reasons, the

judgment below should be affirmed.

Respectfully submitted,

John H. Henn*

Verne W. Vance, Jr.

Foley, Hoag & Eliot

One Post Office Square

Boston, MA 02109

(617) 482-1390

John Reinstein

Civil Liberties Union

of Massachusetts

47 Winter Street

Boston, MA 02108

(617) 482-3170

- 5? _

Jack D. Novik

American Civil

Liberties Union

132 West 43rd Street

New York, NY 10036

(212) 944-9800

*Counsel of Record