Roberto Gonzalez and Gloria Holland v. Nicholas Kokot and Deverick Dixon

This appeal comes to us from a
grant of summary judgment in favor of two East Chicago,
Indiana police officers. A Chicago, Illinois police officer
and his friend brought this § 1983 lawsuit, alleging that
their constitutional rights had been violated when the
East Chicago officers wrongfully arrested them and used
excessive force in doing so. This lawsuit by Roberto Gonzalez
and Gloria Holland faced an immediate hurdle,
however, given that they had previously executed releases
of any claims they might have had against the
East Chicago officers. They nevertheless proceeded with their lawsuit, on the theory that the releases they signed
were invalid and unenforceable either as a matter of contract
law or as violating public policy. Because we agree
with the district court that the releases are valid and
thus fully enforceable, we affirm the grant of summary
judgment.

I. History

A. The Arrest of Gonzalez and Holland

The § 1983 claims asserted by Gonzalez and Holland
arose out of an April 10, 1999 incident that began when
Officers Nicholas Kokot and Deverick Dixon1 were dispatched
to an address on Drummond Avenue in East
Chicago, Indiana. Upon their arrival, the two officers began
to move pieces of wood and concrete sitting in the
street onto the grassy area between the street and the
sidewalk. Gonzalez, apparently unhappy with the transfer
of the wood from the street to a position in front of his
house, opened the door of his home and complained to
the officers that the wood was damaging his lawn. The
officers responded that if Gonzalez wanted the wood removed,
he would have to speak with city officials.

From this point, the precise details of the encounter
are somewhat unclear, but it is undisputed that Gonzalez
and the officers continued to exchange words. According
to the version advanced by Gonzalez, he initially spoke
to the officers in a calm, measured tone, but as the interchange
continued, Gonzalez admits to raising his voice,
apparently making liberal use of profanity throughout
the exchange. There is some disagreement as to the exact warning Officer Kokot then gave Gonzalez; Kokot
asserts that he told Gonzalez to lower his voice, redirect
his anger, or be arrested. Gonzalez claims that Kokot
said nothing about lowering his voice. Gonzalez admits
that he then began to belittle Kokot, and that in doing
so he was "yelling, but not ‘at the top of top of [sic] his
lungs.' " (Appellant Br. at 8.)

The interchange between Gonzalez and the officers culminated
in Officer Kokot's attempt to arrest Gonzalez.
Gonzalez acknowledges resisting Kokot's effort to handcuff
him, holding back his unrestrained arm to avoid being
cuffed and attempting to stand up after Kokot put
him on the ground. During this arrest attempt, Gonzalez's
companion Gloria Holland came out of the house and
attempted to position herself between Kokot and Gonzalez,
asking the officers not to arrest him while she
grabbed Gonzalez's uncuffed arm. She refused Dixon's request
to stop interfering with Gonzalez's arrest, which
led Dixon to grab her arm and arrest her as well. Holland
twice withdrew her arm from his attempt to handcuff
her, leading Dixon to place her on the ground to finish
handcuffing her.

Gonzalez was charged with disorderly conduct in violation
of Indiana Code § 35-45-1-3(2),2 and with forcibly resisting,
obstructing, or interfering with a law enforcement
officer in violation of Indiana Code § 35-44-3-3(a)(1).3

Holland was charged solely with resisting law enforcement.
The charges against Gonzalez and Holland were
brought in East Chicago City Court, where Gerald Kray, a
Deputy Prosecuting Attorney for Lake County, was assigned
the case. The defendants retained attorney Jeffrey
Schlesinger.

B. The Releases

On or about February 28, 2000, while the criminal
charges against Gonzalez and Holland were pending,
their attorney Schlesinger served the City of East Chicago
with a Notice of Tort Claim, asserting the claim that
Officers Kokot and Dixon had arrested Gonzalez and
Holland without probable cause and with the use of excessive
force, violating their constitutional rights. Schlesinger
also told prosecutor Kray of the tort claim, and Kray
relayed this information to the East Chicago Law Department,
as apparently was his practice, by calling Roy
Dominguez, corporation counsel for East Chicago. Thus,
Kray became aware of the civil rights claim to be filed
by the defendants.

According to Schlesinger, he initiated plea discussions
with Kray sometime after the charges were filed. During
these discussions, Schlesinger told Kray that Gonzalez
was a Chicago police officer and that Gonzalez
would face job repercussions if he were found guilty or
were to plead guilty. At some point, the issue of releases
was introduced into the discussions. According to Kray,
it was Schlesinger who first offered signed releases of claims if Kray would agree to a plea arrangement that
led to a dismissal of the charges against his clients.
Schlesinger, on the other hand, testified that Kray indicated
that it was the City of East Chicago that was requiring
releases from the defendants in return for its
consent to a dismissal of the charges. Kray also testified
that it was his practice to obtain the consent of the arresting
officers before dismissing any criminal charges and
that Kokot and Dixon wanted releases from Gonzalez
and Holland before they would provide their consent to
any dismissal.

In any event, the prosecutor, Schlesinger, and Kokot
and Dixon reached an agreement providing for dismissal
of the criminal charges in exchange for the release of any
claims by Gonzalez and Holland - an arrangement known
as a release-dismissal agreement. Sometime after the
issue was introduced into the plea discussions, releases
were prepared by the East Chicago Law Department
and forwarded to Schlesinger. The releases were signed
by Gonzalez and Holland, in the presence of their lawyer,
on June 14, 2000. The releases provide in part:

For the sole consideration of ZERO ($0.00) dollars,
the receipt and sufficiency whereof is hereby acknowledged,
the undersigned hereby releases and forever
discharges Nicholas D. Kokot, Officer, Officer Deverick
Dixon, Frank Acala, Chief of Police, Mayor Robert A.
Pastrick, Office of the City Attorney, East Chicago Police
Department and the City of East Chicago . . . from
any and all claims, demands, damages, actions, causes
of action or suits of any kind or nature whatsoever,
and particularly on account of all injuries, known or
unknown, both to person and property, which have
resulted or may in the future develop from an accident
which occurred on or about the 10th day of August,
1999, at 3723 Drummond Street, East Chicago, Indiana
. . . .

(Pl.'s Ex. 1 & 2.) Schlesinger delivered the executed releases
to Kray in court on the day the criminal charges
against Gonzalez and Holland were dismissed.

C. The § 1983 Lawsuit

On April 19, 2001, less than one year after the dismissal
of criminal charges against them, Officer Gonzalez and
his friend Holland brought this § 1983 suit against Officers
Kokot and Dixon, raising their original Fourth Amendment
claims. Kokot and Dixon moved for summary judgment,
raising the executed releases as an affirmative
defense to these claims.

In opposing the officers' motion for summary judgment,
Gonzalez and Holland argued that the releases they
signed were not supported by consideration and thus
invalid under traditional principles of contract law. Additionally,
they argued that even if the releases were contractually
valid, they were nonetheless unenforceable
as against public policy. The district court held that the
releases were valid and thus barred the lawsuit, noting
"[t]his Court has no doubt whatsoever that these plaintiffs
executed these releases freely and voluntarily and
with the advice of counsel, and that these releases are
valid and enforceable." The district court accordingly entered
summary judgment in favor of Kokot and Dixon.

* * *

Gonzalez and Holland contend that the prosecutor in
their case was aware that Kokot and Dixon did not have
probable cause to arrest them, that the prosecutor should
have thus simply dismissed the charges against them
rather than act as the private representative of the arresting
officers in securing the releases, and that the releases
were not subject to judicial supervision as they were not
made part of the record in the criminal case when the
charges were dismissed.

We first consider the appellants' argument that the releases
they signed are invalid under Indiana contract law.
Under Indiana law, a valid release bars any subsequent
lawsuit on the claims covered by the release. McWaters v.
Parker, 995 F.2d 1366, 1370 (7th Cir. 1993) (citing Lechner
v. Reutepohler, 545 N.E.2d 1144, 1147 (Ind. Ct. App. 1989)).
It is not disputed that the language of the releases at issue
here, if valid, would cover and bar the claims asserted by
Gonzalez and Holland against the officers.

Instead, the appellants argue that the releases are
invalid. "Under Indiana law, release agreements are to ‘be
interpreted in the same manner as any other contract
document, with the intention of the parties regarding the
purpose of the document governing.' " Deckard v. Gen.
Motors Corp., 307 F.3d 556, 562 (7th Cir. 2002) (quoting
Huffman v. Monroe County Cmty. Sch. Corp., 588 N.E.2d
1264, 1267 (Ind. 1992)). Indiana law requires that a release
be supported by consideration to be valid. Bogigian v.
Bogigian, 551 N.E.2d 1149, 1151 (Ind. Ct. App. 1990) (citing
Pope v. Vajen, 22 N.E. 308 (Ind. 1889) and Gates v. Fauvre, 74 N.E. 155 (Ind. App. 1918)). In addition, the parolevidence
rule prohibits courts from considering evidence
outside the four corners of an agreement unless the terms
of that agreement are ambiguous. Deckard, 307 F.3d at
563; Thomas v. Thomas, 577 N.E.2d 216, 219 (Ind. 1991)
("When a contract is unambiguous, the intent of the parties
should be determined by the language employed in the
document." (citations omitted)).

In this case, Gonzalez and Holland argue that the
language of the releases clearly indicates that they were
not supported by consideration. They note that both releases
state on their faces that "ZERO ($0.00)" was the "sole
consideration" given for the release of claims, and that
Indiana's parol-evidence rule prohibits a court from taking
notice of any facts beyond this language.

We cannot say, however, that the terms of these release
agreements are clear and unambiguous. Certainly, it is
not clear why Gonzalez and Holland, counseled by their
attorney, would enter into an agreement that would be
unenforceable from the beginning. The fact that these
releases were drafted to indicate that "ZERO ($0.00)" was
given as consideration - a curious statement given that
"nothing" generally is not "given" as consideration - suggests
that the term was meant to reflect something else, not
that the agreements were invalid from the outset. Most
likely, the "ZERO ($0.00)" consideration term was included
to reflect the fact that no monetary consideration was
given in exchange for the releases. But at the very least,
this term creates an ambiguity in the release agreements
that requires the use of parol evidence to interpret the
agreements in such a way as to give full effect to the intentions
of the parties.

Even when viewed in a light most favorable to the
nonmoving parties, the evidence here clearly shows that
the releases signed by Gonzalez and Holland were supported by consideration. They bargained for and received
dismissal of the criminal charges against them in exchange
for their release of any claims they had against the arresting
officers or the city. Consideration need not be monetary;
the dismissal of criminal charges was certainly something
of value to Gonzalez and Holland, especially in light
of Gonzalez's concern for his job as a Chicago police officer.
Cf. Dye v. Wargo, 253 F.3d 296, 301 (7th Cir. 2001) (finding
a release of § 1983 claims valid under Indiana law
because although the § 1983 plaintiff "did not get cash for
his settlement . . . he did receive value (avoidance of any
debt that might hang over him after prison)"). The city
lived up to its end of the bargain by consenting to the
dismissal of the criminal charges; Gonzalez and Holland
cannot now claim that they're not bound to live up to theirs.
We find that the release-dismissal agreement here was
a valid contract, supported by adequate consideration,
under Indiana law.

B. Federal Public Policy

The appellants next argue that even if the releases are
valid under Indiana contract law, this release-dismissal
agreement is unenforceable as against federally declared
public policy. They contend that Kokot and Dixon have
failed to prove that the releases were given voluntarily, that
the prosecutor acted improperly to protect the private
interests of the police officers despite his knowledge of
police misconduct, and that the agreement was not subject
to judicial supervision.

The potential for the abuse of release-dismissal agreements
has led the Supreme Court to urge the use of
a critical eye when courts are asked to enforce them. See
Town of Newton v. Rumery, 480 U.S. 386, 392-93 (1987).
But despite the risk of misuse, as Gonzalez and Holland
acknowledge, the Supreme Court has explicitly rejected a rule of per se invalidity of these agreements. Id. at 392.
Rather, the Court noted that while "in some cases these
agreements may infringe important interests of the criminal
defendant and of society as a whole," id. at 392, in
general release-dismissal agreements "may further legitimate
prosecutorial and public interests," id. at 397 (plurality
opinion). The Court therefore chose to follow, in Justice
O'Connor's words, "a case-by-case approach [, which] appropriately
balances the important interests on both sides
of the question of the enforceability of these agreements."
Id. at 399 (O'Connor, J., concurring).

According to Rumery, before enforcing a release-dismissal
agreement, a court must find that the agreement
was "voluntary, that there [was] no evidence of prosecutorial
misconduct, and that enforcement of this agreement
would not adversely affect the relevant public interests."
Id. at 398. The burden of proving the validity of a releasedismissal
agreement is on the party seeking to enforce
the agreement. See id. at 399 (O'Connor, J., concurring)
("[I]t is the burden of those relying upon such covenants
to establish that the agreement is neither involuntary
nor the product of an abuse of the criminal process."). Justice
O'Connor's concurring opinion in Rumery provides
additional guidance as to the types of factors a court
should examine when determining the validity of a particular
release-dismissal agreement:

Many factors may bear on whether a release was
voluntary and not the product of overreaching, some
of which readily come to mind. The knowledge and
experience of the criminal defendant and the circumstances
of the execution of the release, including, importantly,
whether the defendant was counseled, are
clearly relevant. The nature of the criminal charges
that are pending is also important, for the greater
the charge, the greater the coercive effect. The existence
of a legitimate criminal justice objective for obtaining the release will support its validity. And, importantly,
the possibility of abuse is clearly mitigated
if the release-dismissal agreement is executed under
judicial supervision.

Id. at 401-02 (O'Connor, J., concurring). We now turn to
an examination of these factors in this case.

1. Voluntariness

According to the Court in Rumery, a valid release-dismissal
agreement must be the result of "an informed
and voluntary decision." Id. at 393. In that case, the Court
focused on several factors in evaluating whether the
agreement at issue had been entered into voluntarily.
The Court noted that Rumery was a "sophisticated businessman,"
that he was not in jail at the time he signed
the release, that he was counseled by "an experienced
criminal lawyer," and that the benefits of the agreement
to Rumery were "obvious." Id. at 394. Taken together,
these factors indicated that Rumery had "voluntarily
waived his right to sue under § 1983." Id.

While the decision in Rumery requires that releasedismissal
agreements be the result of voluntary decisions,
neither the Supreme Court nor this Court have yet addressed
the question as to what standard of proof is required
to prove the voluntariness of a release-dismissal
agreement. Several circuits have previously addressed
this question, coming to different conclusions as to what
the standard should be.

The Third Circuit has held that the voluntariness of
an oral release-dismissal agreement, like the agreement
at issue in this case, must be proven by clear and convincing
evidence. See Livingstone v. North Belle Vernon Borough,
91 F.3d 515, 535-36 (3d Cir. 1996). The Third Circuit
reasoned that a heightened standard of proof was necessary because release-dismissal agreements "implicate ‘important
individual interests or rights' " - namely, the redressing
of possible constitutional-rights violations. Id.
at 535 (quoting Grogan v. Garner, 498 U.S. 279, 286 (1991)).
In addition, a clear and convincing standard was thought
to provide "the salutary effect of reducing the overall risk
of misunderstandings in the conclusion of release-dismissal
agreements, and increasing the accuracy of juries'
decisions as to whether a release-dismissal agreement
was concluded voluntarily." Id. at 536.

The Sixth Circuit reached a different conclusion, holding
that voluntariness need only be proven by a preponderance
of the evidence. See Burke v. Johnson, 167 F.3d 276,
285 (6th Cir. 1999). In Burke, the court addressed the
voluntariness of an oral release-dismissal agreement
read into the record at a plea hearing. While the court
noted that an on-the-record agreement presented less
serious problems of proof than an oral agreement like
the kind addressed by the Third Circuit in Livingstone, it
went on to observe that a preponderance-of-the-evidence
standard is considered sufficient for determining the voluntariness
of waivers of other constitutional rights. Id.
at 284-85 (noting that a preponderance standard is used
to determine the voluntariness of a waiver of Miranda
rights, the voluntariness of a confession, and the involuntariness
of a guilty plea attacked in a habeas proceeding).
The court then concluded that, "[i]f a preponderance of
evidence standard applies when determining if there is
a voluntary waiver of a criminal defendant's constitutional
rights, we see no reason for application of an elevated
standard where lesser rights are implicated." Id.
at 285.

We agree with the Sixth Circuit that the voluntariness
of a release-dismissal agreement need only be proved by
a preponderance of the evidence. The preponderance standard
is sufficient to ensure that a release of claims is entered into voluntarily, just as it has proven sufficient for
determining the voluntariness of waivers of constitutional
rights. In addition, the burden of proving voluntariness
remains on the party seeking to invoke the agreement,
further safeguarding against coerced or involuntary releases.

Under a preponderance standard, it is apparent that
the releases signed by Gonzalez and Holland were the
product of voluntary and informed decisions. The record
indicates that Gonzalez and Holland signed the releases
as the result of a voluntary choice, with a full understanding
of the consequences. Gonzalez, as a Chicago police officer,
undoubtedly had an understanding of the criminaljustice
process. Both Gonzalez and Holland were represented
by counsel who had actively bargained with the
prosecutor for a dismissal of charges, and the possibility
of a release-dismissal agreement had been under discussion
for a significant period of time, giving Gonzalez and
Holland - and their attorney - ample time to consider the
consequences of signing the releases. Gonzalez and Holland
had their attorney present when they actually signed
the releases. And the benefits of the release-dismissal
agreement to Gonzalez especially are obvious: he avoided
potential problems with his job as a Chicago police officer.
Given these facts, considered in light of Rumery, the execution
of these releases was neither involuntary or uninformed.

2. Legitimate Prosecutorial Conduct

Also important to the Supreme Court's analysis in
Rumery was the fact that "the prosecutor had an independent,
legitimate reason to make this [release-dismissal]
agreement directly related to his prosecutorial responsibilities."
Rumery, 480 U.S. at 398. Such a legitimate reason
ensures that the prosecutor acts consistent with his duties to uniformly enforce the criminal law, rather than
as the agent for the private interests of potential § 1983
defendants. In this case, we believe that the prosecutor
did not engage in any improper conduct inconsistent with
his role as prosecutor, nor were his efforts in securing the
releases from Gonzalez and Holland the result of any
prosecutorial overreaching.

First, the prosecutor did not act improperly when he
pursued the charges against Gonzalez and Holland. The
appellants go to great lengths to argue that the pursuit
of charges against them was wholly unjustified. In disputing
the disorderly conduct charge, they admit that Gonzalez
was yelling, but argue that it was not "at the top of
top of [sic] his lungs." In challenging the charges of resisting
law enforcement, they admit that they offered some
resistance during the arrest attempt, but that their resistance
was not "forcible." They also point to inconsistent
accounts given by Officers Kokot and Dixon in their depositions
as evidence of misconduct and apparent complicity
by the prosecutor in ignoring the inconsistencies. But as
the Sixth Circuit has noted, "the existence of discrepancies
among the accounts of prosecution witnesses does
not amount to ‘substantial evidence' of police misconduct
such that an inference of prosecutorial misconduct" arises.
Burke, 167 F.3d at 286. Even accepting Gonzalez's and
Holland's characterization of the charges, we believe that
there was enough evidence to send the criminal case to
the trier of fact. The charges brought against Gonzalez and
Holland were certainly not "unfounded criminal charges
used as bargaining chips to cover up police misconduct." Id. (quotations omitted).

Second, the prosecutor did not abandon his responsibilities
in securing the releases from Gonzalez and Holland.
Prosecutors may legitimately consider the strength of the
defendants' § 1983 claims when considering whether to
enter into a release-dismissal agreement. See Rumery, 480 U.S. at 396 (plurality opinion) ("To the extent releasedismissal
agreements protect public officials from the
burdens of defending such unjust [§ 1983] claims, they
further this important public interest."); id. at 399 (O'Connor,
J., concurring) ("[T]here are substantial policy reasons
for permitting release-dismissal bargains to be struck
in appropriate cases. Certainly some § 1983 litigation is
meritless, and the inconvenience and distraction of public
officials caused by such suits is not inconsiderable.").
We cannot say that it would have been inappropriate
for Prosecutor Kray (as well as Gonzalez and Holland
themselves) to have considered the strength of the § 1983
case in deciding whether or not to enter into a releasedismissal
agreement.

In addition, the plurality opinion in Rumery noted that
"[p]rosecutorial charging decisions are rarely simple." Id.
at 396 (plurality opinion). Prosecutors must consider the
strength and importance of a particular case, government
enforcement priorities, and the appropriate allocation of
scarce prosecutorial resources. Id. Justice O'Connor's
concurring opinion in Rumery notes that "[s]paring the
local community the expense of litigation associated with
some minor crimes for which there is little or no public
interest in prosecution may be a legitimate objective of
a release-dismissal agreement." Id. at 399-400 (O'Connor,
J., concurring) (citation omitted). In this case, prosecutor
Kray testified in his deposition that "[t]his was a very
minor case that got out of hand." (Kray Dep. at 10.) Avoiding
a potentially costly and lengthy trial over relatively
minor matters, with a settlement that was acceptable to
both sides, was certainly a legitimate goal related to Kray's
duties as a prosecutor.

3. The Public Interest

Finally, we cannot say that enforcement of the releases
in this instance will be to the detriment of any public interest. The plurality opinion in Rumery noted that release-
dismissal agreements might "tempt prosecutors to
trump up charges in reaction to a . . . civil rights claim,
suppress evidence of police misconduct, and leave
unremedied deprivations of constitutional rights." Id. at
394 (quotation omitted) (plurality opinion). These agreements
thus raise the potential of harm to the public's
interests in the proper and uniform enforcement of criminal
laws and in seeing episodes of police misconduct
adequately addressed.

We see no evidence of harm to either of these public
interests by the enforcement of the releases signed by
Gonzalez and Holland. As discussed above, the charges
against them were not trumped up in response to their
§ 1983 suit; the record indicates that there were colorable
cases against each. Nor does the record indicate that
Gonzalez and Holland will be left with any significant
constitutional violations unredressed. They did, after all,
receive something of value in exchange for the dismissal
of their § 1983 claims: the dismissal of the criminal charges
against them and the avoidance of the time and expense
of a criminal trial.

The lack of judicial supervision is also not fatal to this
agreement's enforceability. The Rumery Court acknowledged
that while "it would be helpful to conclude releasedismissal
agreements under judicial supervision . . . . such
supervision is not essential to the validity of an otherwise
proper agreement." Rumery, 480 U.S. at 398 n.10.
Because we find that the release-dismissal agreement
at issue in this case was entered into voluntarily, without
evidence of prosecutorial overreaching, we do not
believe that the lack of judicial supervision by itself renders
these releases unenforceable. Rather, we believe
Kokot and Dixon have adequately demonstrated that the
agreement comports with public policy.

* * *

Click the case caption above for the full text of the Court's opinion.

The releases signed in this case were part of a contractually
valid release-dismissal agreement, fully consistent
with considerations of public policy. Because we find
them valid and enforceable, the releases must serve to
bar this § 1983 suit. The grant of summary judgment in
favor of Officers Kokot and Dixon is AFFIRMED.

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