Rumery v. Town of Newton

• Citation: 778 F.2d 66
• Decision Date: 08 October 1985
• Docket Number: No. 85-1508,85-1508
• Parties: Bernard E. RUMERY, Jr., Plaintiff, Appellant, v. TOWN OF NEWTON, etc., et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 66

778 F.2d 66

54 USLW 2318

Bernard E. RUMERY, Jr., Plaintiff, Appellant, v. TOWN OF NEWTON, etc., et al., Defendants, Appellees.

No. 85-1508.

United States Court of Appeals First Circuit.

Heard Oct. 8, 1985.

Decided Dec. 2, 1985.

Charles P. Bauer with whom G. Wells Anderson and Hall, Morse, Gallagher & Anderson, Concord, N.H., were on brief, for plaintiff, appellant.

James S. Yakovakis with whom Brian T. McDonough, James S. Yakovakis Professional Ass'n, Donald E. Gardner and Devine, Millimet, Stahl & Branch Professional Ass'n, Manchester, N.H., were on brief, for defendants, appellees.

Before COFFIN, BREYER and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge:

Bernard E. Rumery, Jr. ("appellant") appeals from a judgment entered April 30, 1985 in the District of New Hampshire, Martin F. Loughlin, District Judge, granting defendants' motion to dismiss appellant's Sec. 1983 claim and various pendent state law claims. The district court dismissed the complaint based on appellant's prior execution of a covenant not to sue, negotiated in exchange for the state prosecutor's decision to nolle prosequi a criminal case against appellant on a witness tampering charge. On appeal, Rumery contends that the district court erred in holding that the release barred his complaint and asserts that the covenant should be held void as against public policy. We hold that a covenant not to sue public officials for alleged deprivations of constitutional rights, executed in exchange for a decision not to prosecute criminal charges, is void ab initio as against public policy. We reverse.

I.

We shall summarize only those facts believed necessary to an understanding of the issues raised on appeal.

Rumery, a resident of Danville, New Hampshire, is a middle-aged marketing representative for an insurance company. After reading in a local newspaper that a former hunting companion of Rumery, one David Champy, had been charged with aggravated felonious sexual assault, Rumery telephoned Mary Deary to inquire whether she knew anything about the incident. Rumery and Mary Deary were business and social acquaintances. Rumery learned that Mary Deary was the alleged victim and the state's principal witness in the criminal case against Champy.

On May 11, 1983 Rumery and Mary Deary had a second telephone conversation. Appellees (the Town of Newton, its Chief of Police, David T. Barrett, and its Selectmen) contend that Rumery informed Mary Deary that Champy's wife had left him and that, if Mary did not want to hurt Champy, she could call the county attorney and ask him to drop the charges. Rumery asserts that the conversation was innocuous and that he made no threats to Mary Deary. Chief Barrett indicated to Deputy County Attorney Brian Graf that Rumery had made statements to Mary Deary to the effect that she might end up like two women in Lowell, Massachusetts, who had been murdered. On May 12, Chief Barrett arrested Rumery for tampering with a witness, in violation of New Hampshire Rev Stat.Ann. Sec. 641:5,I,(b), a Class B felony. Rumery was arrested at his home in the presence of his wife, was handcuffed, and was taken to the Rockingham County jail.

Following his release on his personal recognizance, Rumery retained Stephen Woods as counsel. Woods, an experienced criminal attorney, and Graf discussed the possibility that the prosecution of Rumery could be dropped if Rumery signed a covenant not to sue the persons connected with his arrest. Chief Barrett had advised Graf that Mary Deary did not wish to testify against Rumery. Graf expressed concern about the lack of corroborating evidence of the telephone conversations.

Woods drafted the covenant not to sue and discussed the matter with Rumery. Three days after consulting with Woods, and before a hearing on probable cause for the arrest, Rumery signed the covenant not to sue the public officials connected with his arrest. Thereafter, the witness tampering charge against Rumery was dropped.

In April 1984, Rumery filed in the district court a six-count complaint pursuant to 42 U.S.C. Sec. 1983 (1982) alleging both federal and pendent state law claims arising from his arrest for witness tampering. ¹ Defendants Town of Newton, Chief Barrett and the Selectmen pleaded the covenant not to sue as an affirmative defense. In response to defendants' motion to dismiss and/or petition for declaratory judgment, the district court dismissed the complaint, finding, inter alia, that Rumery is a knowledgeable, industrious individual with extensive experience in the business world, that he carefully considered whether to sign the covenant not to sue, and that he was represented by competent and experienced counsel. This appeal followed.

II.

Whether a covenant not to sue public officials, executed in exchange for a decision to nolle prosequi, is void ab initio is an issue of first impression under Sec. 1983 in this Circuit. Federal law determines the validity of this release of federal constitutional rights. Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir.1981); Boyd v. Adams, 513 F.2d 83, 87 (7th Cir.1975). There is no need, therefore, for us to examine New Hampshire law on the issue.

We recognize that our sister federal courts of appeals have reached varying results in determining the validity of releases of the right to sue for alleged violations of constitutional rights negotiated in the criminal law context. Appellees urge us to embrace the approach adopted by the Ninth and Fourth Circuits in cases which involved an analysis of whether the releases were executed in a voluntary, informed and deliberate manner.

In Jones, supra, the Ninth Circuit focused on objective factors in determining the validity of a release negotiated in exchange for $500. Following his conviction but awaiting sentencing, Jones alleged that he was taken from his cell, stripped, gagged, chained to a wall, hosed with cold water, beaten with a nightstick, and placed in a segregation cell for nineteen days. In holding that there was a triable issue of fact as to the voluntariness of the release of public officials' liability precluding summary judgment, the court considered such factors as the coercive environment, the absence of an attorney, and the pending sentencing. In this post-conviction context, the Ninth Circuit directed courts to examine whether the release was "voluntary, deliberate and informed." Jones, supra, 648 F.2d at 1203.

Appellees also rely on the Fourth Circuit's decision in Bushnell v. Rossetti, 750 F.2d 298 (4th Cir.1984), where the court rejected the argument that all agreements releasing civil rights in exchange for criminal sentencing consideration should be void as against public policy. The court instead applied the "voluntary, deliberate, and informed" standard. Bushnell, supra, 750 F.2d at 302 (citing Jones ). Bushnell had been arrested and convicted for disorderly conduct and resisting arrest. In exchange for Bushnell's promise to dismiss with prejudice his civil rights claim against public officials, counsel for defendants police, mayor, and city council suggested to the prosecutor that he recommend probation at the sentencing hearing. The Fourth Circuit specifically limited its decision to release agreements negotiated after a determination of guilt but before sentencing, reserving for a later day the issue of the validity of a release exchanged for dismissal of criminal charges negotiated in a noncoercive environment. Bushnell, supra, 750 F.2d at 301 n. *. The potential for prosecutorial abuse, exacting releases of related civil rights claims or retaliating for civil prosecution of such cases by threatening a claimant with charges, did not exist in the post-conviction setting according to the Bushnell court. Id. at 301. Moreover, the court stressed that "the potential for forestalling exposure of possibly unconstitutional or illegal government practices" is not present because the police practices that were the subject of the Sec. 1983 claim were already "exposed to full public inquiry when the dismissal agreement was executed." Id.

We decline appellees' invitation to apply the Bushnell and Jones holdings to the pre-conviction situation involved in the instant case. Rumery executed his covenant not to sue while a criminal charge of witness tampering was still pending. The deputy county attorney was in a position to use the threat of prosecution as a sword while simultaneously shielding public officials from a civil rights claim. The public policy considerations which the Bushnell court found inapplicable in the post-conviction setting indeed may be invoked appropriately in the instant case.

III.

The need closely to scrutinize contracts or agreements in the criminal law context is particularly important because of the special relationship between a criminal prosecution and the public...