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Kevin Furey v. Travis Wolfe

December 27, 2011

KEVIN FUREY
v.
TRAVIS WOLFE, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This suit arises from the plaintiff's arrest on April 5, 2008. The plaintiff alleges that Police Officer Travis Wolfe, Police Commissioner Charles Ramsey, and the City of Philadelphia Police Department engaged in violations of his constitution rights, assault, and battery. The defendants filed this motion for summary judgment seeking to enforce the plaintiff's statements on November 24, 2008 that in exchange for participation in an Accelerated Rehabilitative Disposition ("ARD") Program, he would not bring any civil suit against Wolfe or the City. Because the defendants have not met the high burden required to enforce a release-dismissal agreement, the Court will deny the defendants' motion.

I. Relevant Summary Judgment Record

Kevin Furey was arrested on April 5, 2008 as the result of an encounter with an off-duty police officer. The parties dispute the facts surrounding Furey's arrest. That dispute is not relevant to this motion.

Furey was charged with a number of crimes arising from the events on April 5, 2008. On April 15, 2008, the prosecution presented its evidence at a preliminary hearing before Judge Jimmie Moore in the Philadelphia Municipal Court. Judge Moore withheld his decision at that time. On November 24, 2008, Judge Moore was scheduled to give his decision. See Def. Br., Ex. A, Hr'g Tr. 18. Furey was represented at that hearing, and throughout this litigation, by Mrs. Boyce-Furey. Before Judge Moore gave his decision, the parties met for a discussion. The district attorney's office offered to place Furey in the ARD program in exchange for the plaintiff's agreement to several conditions. These conditions were provided to the plaintiff as a handwritten list. See Pl. Br., Ex. W. One of these conditions was a promise not to sue the City or Wolfe. Id.

When asked if the parties were ready for the court's decision, district attorney Holland told the court that "we've reached an agreement." Holland stated that: "the Commonwealth is willing to enroll Mr. Furey in the ARD program, with the following stipulations: That there be twelve months of reporting probation, anger management counseling, alcohol counseling, a stay away order from the police officer[,] . . . [a] statement on the record that the officer and the Philadelphia Police Department will not be sued by the defendant in a civil suit; an in-court apology by the defendant to the police officer and, finally, a statement by the defendant on the record that he takes responsibility for his actions on the night in question and that the officer acted reasonably under the circumstances."

Mrs. Boyce-Furey responded "Your Honor, we agree to all of this and I'm talking on behalf of my client." Hr'g Tr. 19-20. After a brief discussion about whether the statements by the plaintiff should be made at that time or at a later ARD hearing, the plaintiff stated "Everything said by Officer Wolf [sic] on the record involving my actions on that night were correct and truthful and I apologize." The D.A. then requested that the plaintiff state that he would not file a civil suit. Mrs. Boyce-Furey responded, "Your Honor, I don't even know that you can agree to that, but if they want him to say it, let him say it." The plaintiff stated, "I state on the record that I will not sue P.O. Wolf [sic] civilly, C-I-V-A-L-L-Y, or the Philadelphia Police Department. That's how its spelled on the paper." Id. 22-25. The plaintiff later testified that he believed he could decline ARD participation and the conditions sought by the district attorney until he was formally placed in the ARD program. See Pl. Br., Ex. DD, Furey Aff. 2.

Following this hearing, Mrs. Boyce-Furey spoke with attorneys at the district attorney's office to object to the conditions of the plaintiff's ARD placement. Pl. Br., Ex. BB. On June 10, 2009, the plaintiff appeared before an ARD judge and entered into an agreement to participate in the ARD program.

Id., Exs. BB, DD, EE, GG. This agreement did not include the release of the plaintiff's civil claims. Id., Exs. BB, EE. The June 10, 2009 agreement did include conditions not mentioned at the November 24, 2008 hearing, such as fines and a reporting probation. Id., Ex. EE. Furey was told on June 10, 2009 that Judge Moore and D.A. Holland did not have the authority to impose the disputed condition on November 24, 2008. Id. Exs. BB, DD.

The plaintiff filed a civil complaint naming Wolfe and the Philadelphia Police Department as defendants on April 15, 2010.

II. Analysis*fn1

In Town of Newton v. Rumery, the Supreme Court held that there is no per se bar to enforcing release-dismissal agreements.*fn2 480 U.S. 386 (1987). A release-dismissal agreement can be enforced if it is: 1. voluntary, 2. without evidence of prosecutorial misconduct, and 3. enforcement would not adversely affect the relevant public interest. Id. at 398 & n.10. The party seeking to enforce the agreement must prove all three elements. Id. at 392; 401 (O'Connor, J concurring). In several en banc opinions, the Court of Appeals for the Third Circuit has explained how courts should evaluate release-dismissal agreements. See Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993) (en banc); Livingstone v. N. Belle Vernon Borough ("Livingstone I"), 12 F.3d 1205 (3d Cir. 1993) (en banc). An oral agreement is subject to more scrupulous review by the courts than a written agreement. Livingstone I, 12 F.3d at 1212.

A. The Public Interest Element

A party seeking to enforce a release-dismissal agreement must prove both objective and subjective elements in order to show that the release was in the public interest. Cain, 7 F.3d at 381; Livingstone v. N. Belle Vernon Borough ("Livingstone II"), 91 F.3d 515, 527 (3d Cir. 1996). The objective prong requires that the "facts known to the prosecutor when the agreement was reached must have sufficed to support the prosecutor's proffered public interest and that this public-interest reason be a legitimate one." Livingstone II, 91 F.3d at 527. The subjective prong requires that the public interest reason offered by the prosecutor be the "actual reason for seeking the release." Cain, 7 F.3d at 381. The actual-reason requirement protects from the danger that the prosecutor acted from an improper motive, even if some later benefit was achieved. Id.; Kandil v. Yurkovick, No. 10-2343, 2011 U.S. App. ...


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