Before: Sloviter, Chief Judge, Greenberg, Circuit Judge, and Pollak,*fn* District Judge. Reargued In Banc May 11, 1993 Before: Sloviter, Chief Judge, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen, Nygaard, Alito, Roth, and Lewis, Circuit Judges.
This is the second time in recent months that the in banc court has considered whether a release-dismissal agreement provides an absolute defense to a plaintiff's civil rights suit alleging police misconduct and excessive use of force. In Cain v. Darby Borough, 7 F.3d 377 (3rd Cir. 1993), we held that the release-dismissal agreement relied on by the district court as the basis for its grant of summary judgment to the defendant municipalities and officials was unenforceable because the defendants had not made the requisite case-specific showing that the public interest was served by obtaining the release. In this case, we focus on another prong of the required inquiry into release-dismissal agreements, i.e. the need for defendants to show that there was a knowing and voluntary release-dismissal agreement. Because there are material issues of fact as to whether plaintiffs Frances and Joseph Livingstone validly waived their rights to sue the defendant police officers and municipalities for civil rights violations arising from a domestic dispute at the Livingstone home, we will vacate the district court's order granting summary judgment for the defendants and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
This civil suit filed by Frances and Joseph Livingstone against the police officers and municipalities arose from the conduct of the police officers on the night of January 12-13, 1989 at the Livingstone home in Washington Township, Pennsylvania. During a family argument between Carrie Livingstone, age twenty-two, who was unmarried and living at her parents' home with her fourteen-month-old son, and Joseph, her father, Mr. Livingstone struck Carrie on the face, causing her lip to split and bleed. Carrie ran out of the house and to the community ambulance service across the street, where an employee called the police. When Officer Frank Monack arrived, Carrie told him that her father had struck her and that her parents were holding her son without her consent.
Monack, who was at that time an officer in the Washington Township Police Department and is now Chief of Police, radioed for assistance pursuant to an inter-municipal police cooperation agreement. Raymond Moody, who was and is the Chief of Police for the Borough of Fayette City, and Darhl Snyder, an officer in the North Belle Vernon Police Department, responded. They proceeded to the Livingstone home where Mr. Livingstone permitted them to enter for the purpose, he later testified, of discussing possible criminal charges against him arising out of the incident. Following a brief Discussion, Monack and Snyder accompanied Mr. Livingstone outside, and Monack told him to go to the nearby police station to make a statement.*fn1 No charges were filed against Mr. Livingstone that evening or at any later time. Monack and Snyder then reentered the Livingstone household, this time in search of Carrie's son and admittedly without a warrant or court order.*fn2 Mrs. Livingstone had retreated to the back bedroom with her grandson, and had locked and barricaded the door. When she refused to open the door, Monack picked the lock and then tried to push the door open. From the partially opened door, Mrs. Livingstone hit him with a fishing rod and scratched him. Monack and Snyder broke the door down to enter the room, and then Monack told Mrs. Livingstone she was under arrest.
Mrs. Livingstone testified that both men struck her, causing her to lose consciousness and sustain bruises, lacerations, lost teeth, and head injuries. According to defendants, they used force only for the purpose of getting handcuffs on her after she struck the officer, and a stun gun to subdue her because she was screaming and kicking. Snyder held her down while Monack used the gun. Mrs. Livingstone claims that Monack then said "you want a thrill, I'll give you a thrill" and applied the stun gun between her legs. A medical examination conducted at the hospital that night notes a burn in the vulval area.
The officers removed Mrs. Livingstone, handcuffed, from the house. She states that they dragged her outside and dropped her several times, banging her head, and then left her lying in cold muddy water for hours. The officers claim that her thrashing caused them all to fall, and that she refused to get up.
On January 13, 1989, the morning after the altercation, Mrs. Livingstone was charged by Monack, on behalf of the Washington Township Police Department, with disorderly conduct, aggravated assault, terroristic threats, resisting arrest, and interference with custody. At a preliminary hearing on April 18, 1989, Mrs. Livingstone was held over for a jury trial on all but the terroristic threats charge, and the aggravated assault charge was reduced to simple assault.
The trial in Fayette County Court of Common Pleas began on February 13, 1990, with attorney Thomas R. Ceraso representing Frances Livingstone and Jack R. Heneks, Jr., an Assistant District Attorney, representing the Commonwealth of Pennsylvania. Carrie Livingstone testified for the prosecution, followed by Monack, Snyder, Moody, Police Chief Robert Matthews of Washington Township, and Evelyn Rehe of the community ambulance service. The Commonwealth rested, and Mrs. Livingstone demurred to all of the charges. The demurrer was granted on the charge of interference with custody on the ground that there were no facts showing danger to the child, but was denied as to the other charges.
Thereafter, Joseph Livingstone and his son, James, testified for the defense. Before Mrs. Livingstone was to take the stand (and presumably would have testified about her claims with regard to police use of a stun gun on her private parts), the trial Judge, Judge Cicchetti of the Court of Common Pleas, met with Heneks and Ceraso to discuss whether the matter could be resolved.*fn3 After settlement negotiations, a conference was held in camera with Judge Cicchetti. Present were Moody, Monack, Matthews (now deceased), the Livingstones, Ceraso, and Heneks.
Ceraso summarized the arrangement by stating that the defense would move for a judgment of acquittal after James Livingstone finished his testimony; that expenses for the physical damage to the Livingstone house and for Mrs. Livingstone's reasonable medical care would be paid; and that once those bills were paid, the Livingstones would release any civil claims. Ceraso stated on the record:
there will be an agreement on the part of my client, Mrs. Livingstone, and also her husband, Joe Livingstone, who is present, that upon payment of reasonable medical bills that were associated with the incident that occurred, based on my forwarding those to Washington Township with confirmation, together with bills reflecting damage incurred at the household of Mr. and Mrs. Livingstone, that Washington Township will cause the same to be paid. At the time of final payment of those bills, there will be a full and complete release signed with reference to any civil action on the part of Mr. and Mrs. Livingstone. It's also my understanding that at that time there will also be a release signed by Washington Township, or any of its proper officials, or any member of the police force necessary to release Mr. and Mrs. Livingstone from any liability . . . .
In response to the Judge's inquiry, the parties voiced an expression of assent. The court asked whether "you all think this is in the best interest for everyone" and Matthews, Monack, and Heneks said they did. App. at 1112. When they returned to the courtroom, Ceraso moved for a judgment of acquittal on the criminal charges against Mrs. Livingstone, which the court granted.
It is undisputed that the settlement agreement was never reduced to writing. The Livingstones never submitted for payment any medical bills or household repair bills, and no payments have been made. The Board of Supervisors of Washington Township took no action to officially ratify the agreement until almost two years after the conference in chambers, and only then after this suit was started.*fn4 There is no evidence that the other two municipal defendants, North Belle Vernon Borough and Fayette City Borough, have ever taken any action to ratify any putative settlement.
On January 14, 1991, almost a year after the criminal trial, the Livingstones filed this action against the police officers and the three employer municipalities. The complaint consisted of seven claims: a federal claim filed pursuant to 42 U.S.C. § 1983 (1988), and state law claims alleging assault and battery, malicious prosecution, malicious abuse of process, invasion of privacy, intentional infliction of emotional distress, and conversion.
The defendants filed motions to dismiss or, in the alternative, for summary judgment. The district court referred the case to a magistrate Judge, who ordered the parties to engage in discovery*fn5 and to submit briefs and materials in support of the motions.
In their briefs in support of summary judgment, defendants argued that the suit was barred by the release-dismissal agreement reached during the in camera conference before Judge Cicchetti. The Livingstones claimed that they never intended to waive their rights to sue, pointing out that the agreement was never reduced to writing and that Washington Township never made the contemplated payments. They also contended that the agreement was never properly entered into by the municipalities, as the Washington Township Board of Supervisors never formally approved it and the other boroughs' governing bodies never considered it, and that the agreement was invalid and unenforceable under Pennsylvania law.
On April 8, 1992, the magistrate Judge submitted a Report and Recommendation recommending that summary judgment be granted for the defendants on the basis of the release-dismissal agreement. Although the court acknowledged that Washington Township may not have formally approved the agreement, it noted that two supervisors, a quorum, had approved it, thereby satisfying Pennsylvania law. Without comment on the absence of the other municipalities and officers from the agreement, the magistrate Judge concluded that plaintiffs had contracted with all of the defendants, and thus the plaintiffs' civil suit was barred; that the agreement comported with due process because the plaintiffs understood that they were waiving their rights to assert future civil claims and had entered into the release voluntarily; and that there was sufficient consideration because the plaintiffs, in exchange for the surrender of their potential civil claims, had secured the dismissal of the criminal charges and a promise by the defendants not to sue them.
Objections were filed but the district court adopted the magistrate Judge's opinion as its own and granted summary judgment for all defendants. This timely appeal followed.
We have jurisdiction under 28 U.S.C. § 1291 (1988). For a grant of summary judgment our review is plenary, and we review the record giving the benefit of all inferences to the non-moving party. See Erie Telecomms., Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir. 1988).
The district court granted summary judgment for the defendants in reliance on the Supreme Court's decision in Town of Newton v. Rumery, 480 U.S. 386, 392, 94 L. Ed. 2d 405, 107 S. Ct. 1187 (1987), where the Court gave effect to a release-dismissal agreement. The plaintiff, Rumery, had been charged with the state-law felony of tampering with a witness, and agreed to release his potential civil rights claims against the town officials in return for the prosecutor's agreement to dismiss all criminal charges. When Rumery nonetheless sued the town officials ten months after the criminal charges were dropped, the defendants moved to dismiss on the ground that the suit was barred by the release-dismissal agreement. The district court dismissed the case, finding that Rumery's waiver was "voluntary, deliberate and informed." Id. at 391. The Court of Appeals for the First Circuit reversed, holding that release-dismissal agreements are per se invalid as against public policy because they tempt prosecutors to "trump up charges" in ...