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4 PJI 7.3 | Third Circuit (US)
HB-PJI-CA03-04S0703 Download


[Defendant] asserts that [plaintiff] agreed to release [plaintiff’s] claims against [defendant], in exchange for the dismissal of the criminal charges against [plaintiff]. In order to rely on such a release as a defense against [plaintiff’s] claims, [defendant] must prove both of the following things:

First, [defendant] must prove that the prosecutor acted for a valid public purpose when [he/she] sought a release from [plaintiff]. [Defendant] asserts that the prosecutor sought the release because the prosecutor [wanted to protect the complaining witness from having to testify at [defendant’s] trial]. I instruct you that [protecting the complaining witness from having to testify at trial] is a valid public purpose; you must decide whether that purpose actually was the prosecutor’s purpose in seeking the release. In other words, [defendant] must prove by a preponderance of the evidence that the reason the prosecutor sought the release from [plaintiff] was [to protect the complaining witness from having to testify at trial].

Second, [defendant] must prove [by clear and convincing evidence]109 [by a preponderance of the evidence]110 that [plaintiff] agreed to the release and that [plaintiff’s] decision to agree to the release was deliberate, informed and voluntary.111 To determine whether [plaintiff] made a deliberate, informed and voluntary decision to agree to the release, you should consider all relevant circumstances, including [list any of the following factors, and any other factors, warranted by the evidence]:

• The words of the written release that [plaintiff] signed;

• Whether [plaintiff] was in custody at the time [he/she] entered into the release;

• Whether [plaintiff’s] background and experience helped [plaintiff] to understand the terms of the release;

• Whether [plaintiff] was represented by a lawyer, and if so, whether [plaintiff’s] lawyer wrote the release;

• Whether [plaintiff] agreed to the release immediately or whether [plaintiff] took time to think about it;

• Whether [plaintiff] expressed any unwillingness to enter into the release; and

• Whether the terms of the release were clear.

COMMENT The validity of release-dismissal agreements waiving potential Section 1983 claims is reviewed on a case-by-case basis. See Town of Newton v. Rumery, 480 U.S. 386, 392 (1987).112 To be enforced, the agreement must be “executed voluntarily, free from prosecutorial misconduct and not offensive to the relevant public interest.” Cain v. Darby Borough, 7 F.3d 377, 380 (3d Cir. 1993) (in banc) (citing Rumery).

The defense has the burden of showing voluntariness, see Livingstone v. North Belle Vernon Borough, 12 F.3d 1205, 1211 (3d Cir. 1993) (in banc), and if the release was oral rather than written then voluntariness must be proven by clear and convincing evidence, see Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 534-36 (3d Cir. 1996); see also Livingstone, 12 F.3d at 1212-13 (noting reasons why written releases are preferable).113 The inquiry is fact-specific. See Livingstone, 12 F.3d at 1210-11 (listing types of factors relevant to voluntariness). To the extent that the question whether the plaintiff made a “deliberate, informed and voluntary waiver” presents issues of witness credibility concerning the plaintiff’s state of mind, the question should be submitted to the jury. Livingstone, 12 F.3d at 1215 n.9.

The defense must also show “that upon balance the public interest favors enforcement.” Cain, 7 F.3d at 381; see also Livingstone, 12 F.3d at 1215 (discussing possible public interest rationales for releases); Livingstone, 91 F.3d at 527 (noting the “countervailing interest... in detecting and deterring official misconduct”); id. at 528-29 (assessing possible rationales).114 “The standard for determining whether a release meets the public interest requirement is an objective one, based upon the facts known to the prosecutor when the agreement was reached.” Cain, 7 F.3d at 381. Moreover, “the public interest reason proffered by the prosecutor must be the prosecutor's actual reason for seeking the release.” Id.; see also Livingstone, 91 F.3d at 530 n.17. If, instead, “the decision to pursue a prosecution, or the subsequent decision to conclude a release dismissal agreement, was motivated by a desire to protect public officials from liability,” the release should not be enforced. Livingstone, 91 F.3d at 533.115

“[P]rotecting public officials from civil suits may in some cases provide a valid public interest and justify the enforcement of a release dismissal agreement.” Cain, 7 F.3d at 383. But “there must first be a case specific showing that the released civil rights claims appeared to be marginal or frivolous at the time the agreement was made and that the prosecutor was in fact motivated by this reason.” Id.116 Whether the claims appeared to be marginal or frivolous should be assessed on the basis of the information that the prosecutor “knew or should have known” at the time. Livingstone, 91 F.3d at 532. If the claims did appear marginal or frivolous based on the information that the prosecutor knew and/or should have known, the court should then address “the further question whether enforcement of a release dismissal agreement in the face of substantial evidence of police misconduct would be compatible with Rumery and Cain, notwithstanding that the evidence of misconduct was not known, or reasonably knowable, by the prosecutor at the time.” Livingstone, 91 F.3d at 532.

The objective inquiry (whether there existed a valid public interest in the release) is for the court,117 but the subjective inquiry (whether that interest was the prosecutor’s actual reason) is for the jury. See Livingstone, 12 F.3d at 1215. “The party seeking to enforce the release dismissal agreement bears the burden of proof on both of these elements.” Livingstone, 91 F.3d at 527.

(Last Updated July 2019)


109 If the release was oral, the defendant must prove voluntariness by clear and convincing evidence.
110 The Court of Appeals has not determined the appropriate standard of proof of voluntariness in the case of a written release.
111 If more than one defendant seeks to assert the release as a defense, the court, if the plaintiff so requests, should require the jury to consider voluntariness with respect to potential claims against each specific defendant. See Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 526 n.13 (3d Cir. 1996).
112 “Whereas... the validity of a release dismissal for a section 1983 claim is governed exclusively by federal law... , the validity of any purported release of... state claims... is governed by state law.” Livingstone v. North Belle Vernon Borough, 12 F.3d 1205, 1209 n.6 (1993) (in banc); see also Livingstone, 91 F.3d at 539 (discussing treatment of release-dismissal agreements under Pennsylvania law).
113 See also Livingstone, 91 F.3d at 536 n.34 (declining to “address the appropriate standard of proof for enforcement of a written release dismissal agreement”).
114 See also Seth F. Kreimer, Releases, Redress, and Police Misconduct: Reflections on Agreements to Waive Civil Rights Actions in Exchange for Dismissal of Criminal Charges, 136 U. Pa. L. Rev. 851, 928 (1988) (noting that release-dismissal agreements pose “a substantial cost to first amendment rights, the integrity of the criminal process, and the purposes served by section 1983”).
115 “[T]he concept of prosecutorial misconduct is embedded in [the] larger inquiry into whether enforcing the release would advance the public interest.” Cain, 7 F.3d at 380.
116 “As a general matter, civil rights claims based on substantial evidence of official misconduct will not be either marginal or frivolous. But this may not be true in every case. For instance, if the official involved would clearly have absolute immunity for the alleged misconduct, then a subsequent civil rights suit might indeed be marginal, whether or not there is substantial evidence that the misconduct occurred.” Livingstone, 91 F.3d at 530 n.18.
117 “The process of weighing the evidence of police misconduct against the prosecutor's asserted reasons for concluding a release dismissal agreement is part of the broad task of balancing the public interests that favor and that disfavor enforcement. That task is one for the court.” Livingstone, 91 F.3d at 533 n.28.

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