Bushnell v. Rossetti

• Decision Date: 21 December 1984
• Docket Number: No. 83-2125,83-2125
• Citation: 750 F.2d 298
• Parties: Robert E. BUSHNELL, Appellant, v. Philip L. ROSSETTI, Individually and as a Police Officer Baltimore City Police Dept.; D.L. Custer, Individually and as a Police Officer Baltimore City Police Dept.; Frank J. Battaglia, Individually and as Police Commissioner and Mayor and City Council of Baltimore, Maryland, A Municipal Corporation, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 298

750 F.2d 298

53 USLW 2334

Robert E. BUSHNELL, Appellant, v. Philip L. ROSSETTI, Individually and as a Police Officer Baltimore City Police Dept.; D.L. Custer, Individually and as a Police Officer Baltimore City Police Dept.; Frank J Battaglia, Individually and as Police Commissioner and Mayor and City Council of Baltimore, Maryland, A Municipal Corporation, Appellees.

No. 83-2125.

United States Court of Appeals Fourth Circuit.

Argued Oct. 2, 1984.

Decided Dec. 21, 1984.

Robert E. Bushnell, Baltimore, Md., appellant pro se.

Robert C. Verderaime, Baltimore, Md. (Verderaime & DuBois, P.A., Millard S. Rubenstein, Baltimore, Md., on brief), for appellees.

Before WINTER, Chief Judge, PHILLIPS, Circuit Judge, and JOHN R. HARGROVE, United States District Judge, District of Maryland, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge:

Robert E. Bushnell appeals from the district court's grant of summary judgment for the defendants in his federal civil rights action under 42 U.S.C. Sec. 1983 against several agents of the City of Baltimore. The district court granted the defendants' motion on the basis of a formal release of defendants executed by Bushnell after a determination of Bushnell's guilt but before his sentencing in a criminal case that arose from the same incident as Bushnell's Sec. 1983 claim. We affirm.

I

On November 18, 1981, Bushnell, an attorney licensed to practice in the State of Maryland, was arrested in Baltimore's Central District Police Station and charged with disorderly conduct and resisting arrest. Bushnell had gone to the police station in the first instance to report what he believed to be a crime he had just witnessed on a city sidewalk. Because of what Bushnell apparently perceived to be lack of appropriate interest by the police in the incident he was reporting, Bushnell became agitated and verbally abused the officers. The officers responded by arresting Bushnell there in the station and charging him with disorderly conduct and resisting arrest.

Bushnell claims, and for the purposes of reviewing the summary judgment we must assume, that the arresting officers subjected him to a variety of tortious conduct including assault, battery, defamation, false imprisonment and conversion of Bushnell's property. On that basis Bushnell brought this federal civil rights action under 42 U.S.C. Sec. 1981, et seq., against the police officers, the Baltimore Police Chief and the Mayor and City Council of Baltimore alleging deprivation of constitutional rights without due process.

This action was filed on November 17, 1982. Six days later, on November 23, 1982, Bushnell was tried in the District Court of Maryland for Baltimore City on the disorderly conduct and resisting arrest charges. Counsel for the civil defendants attended Bushnell's state criminal trial as observers. At the conclusion of all the evidence in Bushnell's criminal trial, the court found Bushnell guilty on both charges. At the request of counsel for the civil defendants the assistant state's attorney in Bushnell's case then requested a short recess before making a recommendation as to Bushnell's sentencing. The court recessed.

Counsel for the civil defendants then approached Bushnell and his attorney. These counsel noted the professional problems a criminal conviction would pose for Bushnell, and then proposed an agreement whereby Bushnell would dismiss with prejudice this suit against the civil defendants if in exchange counsel for the civil defendants would persuade the assistant state's attorney in Bushnell's criminal trial to recommend probation before judgment under Maryland Code art. 27, Sec. 641. By this means attorney Bushnell would be spared a criminal record and the civil defendants would be spared defending a federal civil rights action against them. After brief consultation with his attorney Bushnell accepted the proffered agreement.

After some initial reluctance on his part, the assistant state's attorney was persuaded to make the probation recommendation when the court reconvened. The court reconvened, the prosecutor recommended probation before judgment, and the court followed the recommendation, granting Bushnell probation before judgment.

In the months following the criminal trial, however, Bushnell refused to sign a proposed order dismissing this civil action with prejudice. In March 1983 counsel for the civil defendants moved the federal district court for summary judgment on the basis of the November 1982 agreement. The district court took evidence on the motion.

In the district court Bushnell conceded he had agreed to dismiss this suit with prejudice in exchange for the November 1982 sentencing consideration, and conceded that the civil defendants had fulfilled their part of the agreement. Bushnell argued however that the entire agreement was void as against public policy and thus should not be enforced by the district court.

The district court found as a matter of law and public policy that the dismissal agreement was valid and entered summary judgment for the defendants, in effect enforcing the agreement between the parties. This appeal followed.

II

Bushnell contends broadly that all agreements releasing civil rights in exchange for criminal sentencing consideration are void as against public policy. He advances the rationale that enforcing such agreements necessarily would tend to stifle full inquiry into allegations of deprivations of constitutional rights and suppress complaints about police misconduct that should be openly aired in a free society. Furthermore, it would give prosecutors an incentive to trump up criminal charges against potential civil plaintiffs in order to have something with which to exact releases of related civil rights claims. In consequence, he contends, the dismissal agreement cannot be allowed to bar his claim here.

In support of this contention and rationale, Bushnell, conceding that the case is one of first impression in this circuit, relies upon three decisions of other circuit courts of appeals. None of the decisions relied upon is directly on point, but in a variety of contexts each does consider the policy and (in one case) constitutional implications of criminal prosecutions carried out or conditioned upon release or dismissal of threatened or pending civil rights actions involving related occurrences. For reasons that follow, we conclude that the decisions do not establish or persuasively support our adoption of the broad principle for which Bushnell contends. Instead, the cases are distinguishable in ways dispositive against his contentions, even were their holdings adopted. To indicate why, we look to the three decisions in some detail.

In Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966 (1968), a black motorist had allegedly been racially harassed in the course of being arrested by two white officers for traffic violations. The city counsel agreed not to prosecute the traffic violations if the motorist agreed not to sue for the officers' misconduct. The arrestee violated his agreement not to sue and the prosecutor retaliated by filing charges on the traffic offenses. The court per Chief Judge Bazelon wrote:

...