In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3250

Anthony H. Dye,

Plaintiff-Appellant,

v.

William B. Wargo, Jr., K-9 named Frei,
and City of Elkhart, Indiana,

Defendants-Appellees.

Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:99-CV-0165RM--Robert L. Miller., Jr., Judge.

Argued February 16, 2001--Decided June 11, 2001


  Before Easterbrook, Manion, and Diane P.
Wood, Circuit Judges.

  Easterbrook, Circuit Judge. Anthony Dye
was injured while attempting to flee from
the police in Elkhart, Indiana. After his
capture, Dye pleaded guilty to three
state felonies he committed during these
events: attempted battery with a deadly
weapon (a charge reduced from attempted
murder), possession of a handgun by a
convicted felon, and possessing a handgun
within 1,000 feet of a school. In this
federal litigation under 42 U.S.C.
sec.1983 Dye seeks to turn the tables and
collect damages on account of the
injuries he sustained while being
subdued. But the district court granted
summary judgment in defendants’ favor,
ruling that Dye’s claims are covered by a
release.

  Dye was carrying a firearm while driving
his Corvette at 2:30 a.m. one day in
Elkhart, Indiana. Officer William Wargo
pulled behind the Corvette with his
flashing lights on. Dye did not stop and
made for his mother’s house. After
pulling into the driveway, Dye leapt from
the car and ran toward the door. Wargo
told his K-9, Frei, to prevent Dye’s
escape, which Frei did by biting one of
Dye’s legs, as Frei had been trained to
do. At Wargo’s direction, Dye assumed a
prone position, and Frei released his
leg. Before he could be handcuffed,
however, Dye got up, pulled a semi-
automatic pistol from his waistband, and
opened fire. Wargo returned fire and
called on Frei for aid. Dye got the worst
of things: against Dye’s multiple gunshot
wounds (to his chest and both legs) and
dog bites, Wargo suffered only a pinched
nerve in his neck. Frei later received
awards for valor in the line of duty.

  Although this much is common ground,
vital details are disputed. Wargo says
that Dye was speeding, driving
erratically, and ran a stop sign; Dye
says that he was obeying all traffic
laws. Wargo says that he activated his
siren as well as his flashing lights; Dye
denies hearing a siren. Dye asserts that
he fled because the Elkhart police have a
reputation for mistreating young black
suspects; Elkhart denies that it has such
a reputation. (An alternative hypothesis
is that Dye hoped that he could hide the
gun in his mother’s house and avoid the
stiff penalty for possession by a felon.
But the reason for his flight is legally
irrelevant, and Dye’s explanation, even
if true, is no justification.) Wargo
contends that Frei released Dye after
halting his flight and did not attack a
second time until Dye refused to be
handcuffed and sprang to his feet; Dye
contends that the sequence was reversed
and that he got back up to defend himself
against Frei’s unprovoked attack. Dye
asserts that he shot at Frei only after
Wargo refused to call off his dog; Wargo
responds that he rather than Frei was
Dye’s target. According to Dye, his most
serious injuries were received after he
had given up, thrown the gun away, was
again lying down, and had been rendered
helpless by a bullet; according to Wargo,
Dye had the gun in his hand and was
trying to use it when he received his
last wounds. If Dye’s version is correct,
these injuries at least would be
actionable under sec.1983, for shooting a
disarmed and passive suspect is a clear
example of excessive force in violation
of the fourth amendment. But if Wargo’s
version is correct, Dye has no valid com
plaint.

  Some of the statements that Dye has made
under oath in this litigation are
inconsistent with statements he made
under oath in state court. For example,
Dye’s current assertion that he never
fired at Wargo is inconsistent with the
affirmative answer he gave when asked:
"And you shot at an Elkhart City
Policeman by the name of William Wargo,
Jr.?" His current assertion that he fled
toward his mother’s home only because he
feared violence at the hands of the
police is inconsistent with this
statement made to the state judge: "And
by me knowing at the time I had a gun in
my possession, you know, I tried to elude
him. And being that I was pretty close to
my mother’s house, you know, I tried to
make it there." One or the other of Dye’s
stories is perjury. His lawyer contends
that Dye was entitled to lie in state
court to ensure that the judge accepted
the favorable plea bargain, and that we
should therefore disregard his earlier
sworn statements. That is not a position
any judicial system can, or does,
tolerate. See, e.g., United States v.
Stewart, 198 F.3d 984 (7th Cir. 1999);
Hugi v. United States, 164 F.3d 378, 381
(7th Cir. 1999). Cf. Cleveland v. Policy
Management Systems Corp., 526 U.S. 795,
806 (1999) (collecting cases from every
circuit holding that a litigant is bound
by answers given during a deposition,
despite a later affidavit contradicting
those answers, unless there is a legally
valid reason why the deposition answers
may be superseded). Although Dye observes
that his statements when pleading guilty
do not contradict anything he has
asserted in this federal case about the
last few moments of the encounter, why
should these statements be believed when
the rest of his story is so questionable?
How can any court credit statements made
by a litigant such as Dye who has
proclaimed his willingness (indeed,
asserts an entitlement) to lie under oath
whenever deceit serves his interests? But
we need not pursue this issue, because
Dye cannot prevail even if he is entitled
to retract his prior testimony.

  Two of the three defendants do not
belong in this case. In litigation under
sec.1983 a municipality is not
vicariously liable for the constitutional
torts of its employees but is answerable
only for the consequences of its
policies. See Monell v. Department of
Social Services, 436 U.S. 658 (1978).
Elkhart does not have a policy of
shooting suspects when they are down.
Although Dye contends that Elkhart did
not properly train either Wargo or Frei,
shortcomings of this kind do not
establish direct liability, because the
Constitution does not require
municipalities to conduct training
programs. Poor training is instead a
means of showing intent for those
constitutional torts where intent
matters, see Collins v. Harker Heights,
503 U.S. 115, 122-24 (1992); Canton v.
Harris, 489 U.S. 378, 388 (1988), and
excessive force under the fourth
amendment is not one of those
constitutional torts. See Graham v.
Connor, 490 U.S. 386 (1989); Lester v.
Chicago, 830 F.2d 706 (7th Cir. 1987).
Proof of failure to train officers could
be used to demonstrate that the
municipality approves (hence has a policy
of) improper conduct that training could
extirpate. Such a claim in a case like
this would depend on establishing that
the City’s policymakers knew that the
police were using objectively
unreasonable force in apprehending
suspects, yet did nothing to solve the
problem. See Canton, 489 U.S. at 388 n.8;
Lanigan v. East Hazel Crest, 110 F.3d
467, 478-79 (7th Cir. 1997); Sledd v.
Lindsay, 102 F.3d 282 (7th Cir. 1996).
Dye has not offered any evidence that use
of excessive force is common in Elkhart,
indeed has not produced evidence of even
one prior incident. Cf. Oklahoma City v.
Tuttle, 471 U.S. 808, 824 (1985)
("considerably more proof than [a] single
incident will be necessary . . . to
establish both the requisite fault on the
part of the municipality, and the causal
connection between the ’policy’ and the
unconstitutional deprivation"). Thus the
City cannot be held liable on the theory
that lack of more extensive training for
Wargo or Frei evinces a policy of using
constitutionally improper force.

  As for Frei: sec.1983 applies only to a
"person" who acts under color of state
law. See Arizonans for Official English
v. Arizona, 520 U.S. 43, 69 (1997). Under
the Dictionary Act, 1 U.S.C. sec.1, "the
words ’person’ and ’whoever’ include
corporations, companies, associations,
firms, partnerships, societies, and joint
stock companies, as well as individuals",
but dogs are not on this list, whether or
not they act under color of state law.
Cf. Miles v. Augusta City Council, 710
F.2d 1542, 1544 n.5 (11th Cir. 1983) (a
cat is not a "person" for purposes of the
fourteenth amendment). A suit against a
dog poses a host of other problems. Was
Frei served with process? Did he retain
as his lawyer Lynn E. Kalamaros, who
purports to represent all three
defendants? Was Frei offered the right of
self-representation under 28 U.S.C.
sec.1654? What relief does Dye seek from
a dog--Frei’s awards, perhaps? Could Frei
claim qualified immunity? If a reasonable
person in the defendant’s position would
not have understood that what he was
doing violated the Constitution, damages
are unavailable. See Anderson v.
Creighton, 483 U.S. 635 (1987). Must we
then ask whether a reasonable dog in
Frei’s position should have understood
that he was violating Dye’s
constitutional rights? One could half
understand pursuing Frei because he is
not a party to the release. But at oral
argument, when asked why he had named a
dog as a defendant, Dye’s lawyer replied
that he deemed Frei an "employee" of the
City and was hoping to hold the City
vicariously liable for his deeds. That
not only ignores Monell but also scotches
any effort to skirt the release--for that
document covers all of the City’s
employees. (Anyway, treating a dog as an
"employee" would raise thorny issues
under the Fair Labor Standards Act.
Should Frei get time-and-a-half for
overtime? Cf. Brock v. Cincinnati, 236
F.3d 793 (6th Cir. 2001).) All things
considered, it is best to follow the
Dictionary Act and hold that a dog is not
a proper defendant in litigation under
sec.1983. (Dye’s state-law claims against
Frei fare no better; Indiana requires the
victim of a dog bite to sue the dog’s
owner, not the dog. Burgin ex rel. Akers
v. Tolle, 500 N.E.2d 763, 766 (Ind. App.
1986).)

  This leaves the claim against Wargo,
which as the district court held is
barred by Dye’s release of "any State or
Federal claim or cause of action of any
kind whatsoever . . . arising out of the
arrest and shooting of Anthony H. Dye, on
or about March 22, 1997." The release is
unconditional, and if this language were
not comprehensive enough an additional
two pages go on to close every possible
loophole. Dye does not deny that the
release, taken at face value, bars this
suit (and also requires him to reimburse
defendants for their legal fees).
Nonetheless, Dye insists, the release is
subject to an unstated condition: that he
obtain a plea bargain superior to the one
he entered. The district court rightly
held this argument foreclosed by
Indiana’s parol evidence rule, see Kruse
Classic Auction Co. v. Aetna Casualty &
Surety Co., 511 N.E.2d 326, 329 (Ind.
App. 1987), as well as by the principle
that one party’s unilateral expectations
do not affect a contract’s meaning. See
Ruff v. Charter Behavioral Health System
of Northwest Indiana, Inc., 699 N.E.2d
1171, 1173-74 (Ind. App. 1998). Dye does
not contend that he conveyed this
expectation to the City or any of its
lawyers. Instead of pointing to an
ambiguity in the release or to the
parties’ mutual understanding of its
effect, Dye insists that, because he was
seriously injured, there must be some
escape hatch. This is nothing but wishful
thinking; we would have to pitch not only
the release but also the body of
Indiana’s contract law out the window to
accept his view. Dye gave up his right to
sue Wargo and the City but received in
return a promise by Wargo and the City
not to sue him. Although he lacks assets
(including insurance) that would have
made suit attractive, he also knew (or
could have learned from his lawyer) that
liability on account of efforts to kill a
police officer (or even a police dog)
could not be discharged in bankruptcy.
See 11 U.S.C. sec.523(a)(6). The mutual
release enabled Dye to ensure that he
would get a fresh start at the end of his
imprisonment. This release is not the
sort of apparently irrational act that a
court should endeavor to overcome.

  Dye tries to get mileage from the fact
that his is the only signature on the
release. Yet, as the district judge
pointed out, the statute of frauds
requires the signature only of the party
sought to be bound. Consolidation
Services, Inc. v. KeyBank N.A., 185 F.3d
817, 819-20 (7th Cir. 1999) (Indiana
law); Mehling v. Butois County Farm
Bureau Co-Op Ass’n, Inc., 601 N.E.2d 5, 7
(Ind. App. 1992). Cf. In re Vic Supply
Co., 227 F.3d 928 (7th Cir. 2000).

  What Dye needed to show is that the City
did not agree to the release, not simply
that the City’s agents failed to sign the
release. This document is a mutual
release, not a unilateral waiver, so its
effectiveness depends on the City’s
assent. Dye asserts that the City did not
agree, but the only evidence he offers is
the missing signature, which just takes
us back to the statute of frauds. Dye
would have a good point if, for example,
his lawyer drafted the release, Dye
signed it, and counsel then sent the
document to the City, which ignored the
proposal. Such a sequence would
demonstrate an offer but not an
acceptance. What actually happened is
significantly different, however. During
the plea negotiations Dye’s lawyer placed
the prospect of a release on the table as
a bargaining chip. The prosecutor
responded that he would not offer any
concession in exchange for Dye’s release
of civil claims. Still, at the insistence
of Dye’s attorney, the prosecutor passed
the idea of a mutual release on to
Elkhart’s City Attorney. Elkhart’s legal
department then prepared a release, which
it transmitted to Dye’s lawyer through
the prosecutor’s office. Dye signed the
document exactly as tendered and handed
it back to the prosecutor, who returned
it to the City. Thus we know that,
although Dye brought up the idea, the
City found it acceptable and approved its
every word. Dye did not make a
counteroffer; he signed the document the
City tendered. Agreement has been
established. (Dye does not contend that
the City has failed to keep its part of
the bargain, or that the City Attorney
lacks actual authority to negotiate
agreements of this kind on Elkhart’s
behalf.)

  Thus the release is valid under Indiana
law and extinguishes Dye’s claims. Still,
we must consider Dye’s contention that
the contract is "unenforceable [because]
the interest in its enforcement is
outweighed in the circumstances by a
[federal] public policy harmed by
enforcement of the agreement." Newton v.
Rumery, 480 U.S. 386, 392 (1987). The
premise of Dye’s argument is that his
version of events is correct. Federal law
prevents police from getting off scot
free after shooting helpless suspects,
Dye contends. Dye’s position ignores the
point of a release--which is to avoid the
need to decide whose story is to be
believed. We cannot just assume that Dye
is telling the truth now, and that both
Wargo (now) and Dye himself (at the time
of his guilty plea) have dissembled. It
would be necessary to hold a trial to
determine whether Dye’s current story is
correct. Yet to hold such a trial would
be to say in effect that no release of
liability under sec.1983 can be enforced,
for a release would never avert a hearing
on the merits of the plaintiff’s claim,
and all of the associated expense, even
if the state actors prevailed in the end.
That would make it harder (if not
impossible) for parties to settle their
differences without litigation.

  Dye did not get cash for his settlement,
but he did receive value (avoidance of
any debt that might hang over him after
prison); his legal position here,
however, would apply even to persons who
executed releases in exchange for
monetary settlements. It is difficult to
see how making releases unenforceable
could help other persons in Dye’s
position who might very much want to
resolve their disputes, only to be
rebuffed by municipalities who would be
unwilling to enter agreements that their
adversaries could choose to discard. See
Pierce v. Atchison, Topeka & Santa Fe
Ry., 65 F.3d 562 (7th Cir. 1995). It is
equally difficult to see why, if a
plaintiff in sec.1983 litigation may
settle for a pittance once a suit is on
file, the same person may not settle for
a pittance before initiating litigation.

  Newton, the only case on which Dye
relies, offers him little aid, for it
enforced a release of liability under
sec.1983. See also Evans v. Jeff D., 475
U.S. 717 (1986) (plaintiff may agree to
forego attorneys’ fees under 42 U.S.C.
sec.1988). Newton rejects a contention
that releases given in exchange for the
dismissal of criminal charges always are
unenforceable. All of the Justices
assumed that an ordinary mutual release
of damages liability could be enforced;
the question on the table in Newton was
whether using criminal charges to obtain
a release of civil liability would give
the state too much leverage. The Justices
who dissented in Newton expressed a
concern that prosecutors would use their
charging discretion to induce settlement.
Even a weak criminal accusation creates a
risk of such magnitude that victims of
official misconduct may surrender their
right to seek civil redress in order to
avoid a small chance of lengthy
imprisonment. That is a much more
substantial concern than any argument Dye
advances--for the prosecutor not only did
not dismiss the charges against him but
also declared that the civil settlement
would not be taken into account in the
criminal plea bargaining. Because the
majority in Newton held that even a
release-for-dismissal bargain is
enforceable, a simple mutual release of
civil liability poses no problems. And
this is an ordinary mutual release. Dye
contends that it was his "understanding"
that he would receive consideration for
the release in the form of a better plea
agreement, but, as we observed when
discussing the parol-evidence problem,
that assertion is not backed up by
written evidence--and now we add that it
is not backed up even by parol evidence
about what the City’s agents said to Dye
or his lawyer. Free-floating
"understandings" are irrelevant to the
law of contract, state or federal. If Dye
contended that the prosecutor said
something to give rise to this
"understanding" then there might be an
issue worth debating; but self-generated
beliefs have no legal consequences.

  Dye has not cited, and we have not
found, any case holding that a mutual
release of civil liability is
unenforceable under federal law. Federal
courts have not embraced the view, see
Owen M. Fiss, Against Settlement, 93 Yale
L.J. 1073 (1984), that settlement
interferes with judges’ ability to
declare the law, right wrongs, and
otherwise act as ombudsmen. Litigation
offers a means to vindicate claims, but
entitlement is not compulsion. Section
1983 and associated statutes do not
employ the approach of the Fair Labor
Standards Act and the handful of other
federal laws that either foreclose
private settlements or require their
supervision by a public official. See 29
U.S.C. sec.216(c). Waivers and releases
serve the interests of both parties: a
waivable right is more valuable to its
holder than is a non-waivable right, for
the waivable right may be traded to the
other side for a benefit that the holder
values more highly than the right’s
exercise. See, e.g., United States v.
Krilich, 159 F.3d 1020 (7th Cir. 1998).

  Circumstances amounting to duress, the
kind of threats that undermine any
contract, would preclude enforcing a
release as well. But Dye does not contend
that his release was extracted by
improper threats or was otherwise
involuntary. Recall that Dye himself
(through his lawyer) first proposed the
release, persisting after the prosecutor
said that civil liability would not be
taken into account in the plea bargaining
process. Federal law allows parties to
waive not only claims for damages, as in
Newton, but also the rights to defend
themselves (as Dye did when pleading
guilty) and to appeal from adverse
decisions. See United States v.
Mezzanatto, 513 U.S. 196 (1995); United
States v. Wenger, 58 F.3d 280 (7th Cir.
1995). Dye must keep his promise to
refrain from civil suit, just as his plea
of guilty precludes most avenues of
attacking his conviction. See Bousley v.
United States, 523 U.S. 614 (1998);
United States v. Broce, 488 U.S. 563
(1989); Mabry v. Johnson, 467 U.S. 504,
508-09 (1984).

Affirmed




  DIANE P. WOOD, Circuit Judge, dissenting
in part and concurring in part in the
judgment. Both the majority and I agree
that Officer William Wargo, of the
Elkhart, Indiana police force, used
constitutionally excessive force against
Anthony Dye, when we take the contested
facts in the light most favorable to Dye.
Our disagreement centers on the legal
effect of the release Dye signed, which
the majority thinks lets both the City of
Elkhart and its employee off the hook. I
believe this conclusion fails to give
proper effect to the facts surrounding
the execution of the release and the
Supreme Court’s instructions about the
way we are to assess such documents. I
therefore respectfully dissent with
respect to the case against Wargo.

I

  Before turning to the release itself, I
believe it is necessary to give a
somewhat more detailed account of the
facts of the encounter between Dye and
Wargo. I do so because I think Dye’s
excessive force claim extends to more
conduct than the majority would
recognize, because parts of the
majority’s account either omit critical
facts favorable to Dye or dwell on facts
that are peripheral, and because the
analysis of the release must be
undertaken with the context of the
dispute in mind. Naturally, my account of
the facts presents them in the light most
favorable to Dye, the non-moving party.

  In his sec. 1983 lawsuit, Dye named as
defendants Wargo, the City of Elkhart,
and (mysteriously) Frei, Wargo’s police
dog. Only the claims against the first
two defendants require our attention.
(The majority hardly needs to belabor the
point that, no matter how much of an
animal lover one may be, a dog at this
time is not a "person" amenable to a
sec.1983 suit). Dye asserted several
excessive force claims against Wargo, all
stemming from the confrontation in the
early morning hours of March 22, 1997.
Dye’s claim against the City of Elkhart
is that his injuries resulted from its
failure adequately to train Wargo (and
Frei) and that this failure to train rose
to the level of deliberate indifference
to Dye’s right under the Fourth Amendment
to be free from unreasonable seizures.


  A.   sec.1983 Claims Against Wargo

  As the majority has reported, the events
that triggered this lawsuit began around
2:30 a.m. on March 22, 1997. Dye was
driving his brother’s Chevrolet Corvette
on Indiana Avenue, within the City of
Elkhart, headed toward his mother’s
house. He was obeying the speed limit and
all other traffic laws when he observed
that he was being followed by a police
car, which turned out to be driven by
Officer Wargo. Dye reached the
intersection of Indiana Avenue and
Sterling Avenue and, still in compliance
with all traffic laws, came to a full
stop. He then turned right onto Sterling
Avenue. Nonetheless, after he made the
turn, he saw that the police car had
turned on its flashing overhead lights.
Dye realized that the officer was
signaling to him to pull over, but he
continued driving in the short-sighted
hope that he might be able to reach his
mother’s house and get inside before the
police officer could stop him. His
motivation was simple: Dye was a
convicted felon and he was carrying an
unlicenced 9mm handgun. With Wargo now in
pursuit, Dye turned into the alley behind
his mother’s house, drove until he came
to her yard, pulled in and stopped the
car.

  The minute his car came to a halt, Dye
opened the door and without looking back
made a dash for the house. Wargo, who had
pulled in behind him, saw Dye start
running toward the house and released
Frei. Wargo never ordered Dye to stop,
nor did he warn Dye that he was about to
release the dog. Frei overtook Dye before
Dye reached the house. As he was trained
to do, Frei bit Dye’s leg and held on.
Wargo yelled to Dye that Frei would not
release until Dye got down on the ground
in a cross position. Dye did as he was
told, and Frei released his grip. Wargo
then told Dye to put his hands behind his
back. As Dye attempted to comply, Frei
attacked him again. Fearful and in pain,
Dye stood up, attempting to get Frei to
quit biting him and yelling to Wargo to
call off the dog. Wargo did nothing, and
Frei continued biting. Wargo told Dye
that Frei would not stop biting him until
he laid down again on the ground. Afraid
of what the dog would do to him if he
laid down again, Dye instead continued to
fight the dog off. Wargo then sprayed Dye
in the face with pepper spray and struck
him in the back of the neck. Neither of
these interventions brought Dye down.
Instead, Dye lifted his shirt and pulled
his gun from his waistband. Wargo yelled
at Dye not to do it, but Dye fired at
least twice. (He claims he was aiming for
the dog, but I agree with the majority
that this is beside the point for
purposes of assessing Wargo’s conduct.
Wargo obviously had no way of knowing
whom or what Dye meant to be shooting.)
Dye’s actions prompted Wargo to pull his
own weapon. Once Dye began shooting,
Wargo dropped to the ground and fired at
Dye, striking him just under the left
shoulder.

  Wargo’s initial shot at last caused Dye
to fall to the ground and drop his gun.
He wound up face down on the ground with
Frei still biting at him. Despite the
fact that Dye was now unarmed and on his
stomach, Wargo continued to fire, pausing
at one point to put a new clip in his
weapon. An officer who arrived at the
scene in the midst of the shooting
reported that while he watched, Wargo
shot at Dye five or six times from a
standing position about ten feet from
Dye. Dye suffered multiple gunshot
wounds, most of them flesh wounds on the
back or sides of his limbs. He had a
wound on the rear of his right arm, just
below the elbow, as well as on the back
of his left arm. Two bullets passed
through Dye’s right leg and he suffered a
flesh wound to his right calf. Wargo
suffered only a pinched nerve in his
neck, and Frei was unscathed.

  Dye identifies four seizures during the
course of these events that he contends
were unreasonable for constitutional
purposes: 1) Wargo’s dispatching Frei to
capture Dye as he ran toward his mother’s
house, without any warning or verbal
command to Dye to surrender; 2) Frei’s
attack on Dye as Dye tried to comply with
Wargo’s command to put his hands behind
his head; 3) Wargo’s use of the dog,
pepper spray, and a hand strike in
response to Dye’s refusal to get down on
the ground; and 4) Wargo’s decision to
continue firing at Dye as he lay on the
ground, face down, and without a weapon.
Wargo’s first defense to these claims is
that the events of that evening did not
occur as Dye claims, but this factual
dispute cannot be resolved at the summary
judgment stage. More productively, Wargo
asserts that even if events transpired as
Dye says they did, his use of force was
at all times objectively reasonable and,
to the extent it was not, he is entitled
to qualified immunity because at the time
of the incident there was no case law
clearly establishing that his conduct was
unconstitutional.

  The majority agrees that if Dye’s
version of the events is correct, then at
least the fourth of these allegations
would be actionable under sec. 1983. That
much seems indisputable to me. In fact,
in my opinion Dye’s account of Wargo’s
actions states at least two excessive
force claims for which Wargo would not be
entitled to qualified immunity. The first
is the one the majority has identified:
Wargo’s decision to continue shooting at
Dye after he was face down on the ground
without a weapon. Even if Dye initially
fired at Wargo and not the dog, as Dye
testified during his plea colloquy in
state court, once Dye was down and no
longer posed a threat to Wargo, no
reasonable police officer in 1997 could
believe that he was entitled to continue
firing at the backside of an unarmed and
disabled individual. In addition, I would
find that Dye also has a claim related to
the second point he has identified,
Frei’s unprovoked attack on Dye once Dye
had surrendered to Wargo and was
attempting to place his hands behind his
back. At that point, Dye was under
control and was trying to do what Wargo
had asked. It has long been well-
established that a police officer may not
continue to use force against a suspect
who is subdued and complying with the
officer’s orders. See Frazell v.
Flanigan, 102 F.3d 877, 884 (7th Cir.
1996) (jury could reasonably conclude
that officer who struck subdued suspect
in back with nightstick used objectively
unreasonable force and was not entitled
to qualified immunity); Ellis v. Wynalda,
999 F.2d 243, 247 (7th Cir. 1993) (force
that is reasonable while suspect poses
threat is no longer reasonable once
threat is no longer present); Priester v.
Riviera Beach, 208 F.3d 919, 927 (11th
Cir. 2000) (denying qualified immunity to
officer who in 1994 allowed his dog to
attack suspect who was lying on the
ground and not resisting). While Frei may
not be a "person," he certainly was an
instrumentality of force that Wargo was
using, and Wargo was responsible for the
dog’s actions.


  B.   City of Elkhart

  The majority concludes, and I agree,
that the City of Elkhart is entitled to
summary judgment on Dye’s failure to
train claim. My only difficulty here is
with one statement that could be
misinterpreted if read out of context.
The majority states, ante at 4, that "the
Constitution does not require
municipalities to conduct training
programs." In the abstract, such a
statement might be true, but we deal in
practicalities rather than abstractions.
As the majority properly recognizes, in a
case like Dye’s, proof of a failure to
train could be used to demonstrate an
unlawful municipal policy that tolerated
the use of excessive force by Elkhart
police officers. Ante at 4. Dye’s problem
here, as the majority points out, is that
he had nothing to back up his allegation
that the City of Elkhart’s K-9 unit
training was constitutionally inadequate
at the time of his confrontation with
Officer Wargo. In fact, what is in the
record contradicts Dye’s speculations.
For example, Dye asserts that there were
whole categories of activity for which
the City of Elkhart failed to train Frei,
including how to apprehend suspects while
off a leash, but the training reports
offer unrefuted evidence that such
activities were part of Wargo and Frei’s
training. Dye offers no evidence of any
other incidents of excessive force
similar to the one he allegedly
experienced. There is thus no evidence
that the City of Elkhart was aware that
it had a problem or that its training was
not adequately protecting the rights of
civilians. I therefore agree with the
majority that Dye’s failure to train
claim cannot succeed.

II

  With this background established, I turn
to the release. Like the district court,
the majority finds that it is enforceable
as a matter of Indiana contract law, and
that this is enough to doom Dye’s claim.
At best, though, enforceability under
state law is just the first step in the
analysis. It is critical to take into
account the fact that Dye executed this
waiver of his federal statutory right to
sue during plea negotiations with the
prosecutor. According to his own
testimony and the testimony of the
attorney that represented him during the
plea negotiations, Dye signed the waiver
with the understanding that in exchange
he would receive a more favorable plea
agreement. These circumstances bring into
play the Supreme Court’s decision in Town
of Newton v. Rumery, 480 U.S. 386 (1987).
There the Court held that whether or not
a waiver is enforceable is a matter of
federal common law and that the salient
question is whether enforcing the waiver
is consistent with public policy. Because
there are disputed issues of fact that
pertain to these issues, I would remand
this case for further proceedings.

  In Rumery, a majority of the Court
decided that a release signed by a
defendant whose felony witness tampering
charge had been dropped in exchange for
the release should be enforced. In Part
II of the opinion (which did command a
Court), Justice Powell wrote:

  We begin by noting the source of the law
that governs this case. The agreement
purported to waive a right to sue
conferred by a federal statute. The
question whether the policies underlying
that statute may in some circumstances
render that waiver unenforceable is a
question of federal law. We resolve this
question by reference to traditional
common-law principles, as we have
resolved other questions about the
principles governing sec. 1983 actions. .
. . The relevant principle is well
established: a promise is unenforceable
if the interest in its enforcement is
outweighed in the circumstances by a
public policy harmed by enforcement of
the agreement.

480 U.S. at 392 (citation omitted). In
Part III-A of the opinion, which also
garnered the votes of a majority of the
Justices, the Court rejected the notion
that waiver-release agreements were per
se void as against public policy.
Instead, Rumery adopted a case-by-case
approach which requires courts to assess
whether the waiver was entered into
voluntarily, whether the prosecutor had a
legitimate purpose for entering into the
agreement, and whether enforcement of the
waiver otherwise furthers the public
interest. 480 U.S. at 398.

  Rumery’s principal holding that waiver-
dismissal agreements are not per se
unenforceable left many questions
unanswered. Decisions from a number of
our sister circuits have begun to provide
some answers. For example, as Justice
O’Connor’s separate opinion in Rumery
suggested, it is the defendants in a
federal civil rights suit who have the
burden of proving by a preponderance of
the evidence that a waiver was entered
into voluntarily, that there was no
prosecutorial overreaching, and that the
enforcement of the waiver furthers the
public interest. See id. at 401
(O’Connor, J.) (concurring in part and
concurring in the judgment); Livingstone
v. North Belle Vernon Borough, 12 F.3d
1205, 1214 (3d Cir. 1993); Woods v.
Rhodes, 994 F.2d 494 (8th Cir. 1993);
Lynch v. City of Alhambra, 880 F.2d 1122
(9th Cir. 1989). This means that a
district court properly applying the
Rumery test cannot grant summary judgment
in a release-dismissal case like this one
unless it is clear as a matter of law
that there are no material issues of fact
with respect to these prerequisites to
enforceability. Livingstone, 12 F.3d at
1215 (remanding for determination whether
there were disputed issues of material
fact regarding voluntariness); Woods, 994
F.2d at 500 (finding reasonable minds
could not differ on whether release was
voluntary or secured by prosecutorial
overreaching); Lynch, 880 F.2d at 1129
n.10 (recognizing that "the inquiry that
the district court must perform
undermines, to some extent, the very
purpose of the release-dismissal" but
finding that "such an inquiry is
necessary to conform with the public
policy requirement announced by the
Supreme Court in Rumery").

  The district court in this case made
none of the necessary factual findings or
legal determinations required by Rumery.
The majority, although it cites Rumery,
seems to think that because Rumery
rejected the proposition that releases
are never enforceable, this must mean
that they are always enforceable.
Furthermore, the language the majority
uses compels the conclusion that it has
improperly placed the burden on Dye to
show the flaws in the release, instead of
putting the burden on the state to show
that it meets Rumery’s standards. Its two
paragraphs discussing Rumery are replete
with phrases like "any argument Dye
advances," or "Dye has not cited," or
"Dye does not contend." As I indicate
briefly below, my review of the record
convinces me that there are material
issues of fact regarding Dye’s waiver
that preclude granting summary judgment
to the defendants on the basis of the
waiver.


  A.   Voluntariness

  Whether a criminal defendant voluntarily
entered into a waiver-dismissal
arrangement depends on the "particular
facts and circumstances surrounding [the]
case." Livingstone, 12 F.3d at 1211. The
majority in Rumery stressed that Rumery
was a sophisticated businessman, that he
was not in jail when he signed the
agreement, that he was represented by
counsel, that his counsel drafted the
agreement, and that Rumery had three days
to consider the deal. The Court also
emphasized that Rumery’s decision to sign
the agreement was "highly rational"
because the benefits of the agreement
were obvious: "he gained immunity from
criminal prosecution in consideration for
abandoning a civil suit that he may well
have lost." 480 U.S. at 394. Finally, in
a footnote, the majority indicated that
it would have more confidence in the
voluntariness of an agreement if it were
presented to the court for approval. Id.
at 398 n.10.

  The facts of this case present a far
more mixed picture. On the one hand, Dye
was represented by counsel, the language
of the agreement was clear, and he had
sufficient time to read and understand
it. This evidence favors a finding of
voluntariness. On the other hand, Dye was
in prison, there is no evidence that he
was particularly sophisticated, he did
not draft the agreement, the agreement
was never presented to the court, and
unlike Rumery, who faced a charge with a
maximum seven-year sentence, Dye was
facing an attempted murder charge. The
pressures on Dye were thus considerably
greater than those facing Rumery.
Moreover, despite the majority’s attempt
to rationalize the agreement as giving
Dye the opportunity to "start fresh"
after serving his sentence, a trier of
fact might conclude that the benefits to
Dye of signing this waiver agreement were
illusory. Even on its face, the agreement
required Dye to give up his right to
bring a sec.1983 suit against Officer
Wargo and the City of Elkhart in exchange
only for their not bringing state law
tort actions against him (claims that
would have been economically foolish
given Dye’s likely judgment-proof
status); Dye received no written promise
that any charges against him would be
dismissed. This hardly seems like a
highly rational judgment, and it would
make a reasonable jury question the
voluntariness of Dye’s agreement to the
deal.

  The majority attempts to allay any
concerns raised by the one-sidedness of
the waiver by claiming that the
prosecutor informed Dye during their plea
negotiations that his signing the waiver
would have no effect on the plea
negotiations. This, however, is a
contested fact in the record. There is no
dispute that it was Dye’s counsel who
suggested the idea of signing a waiver in
exchange for a better plea bargain.
Contrary to the majority’s assertion,
however, both Dye and his attorney
declared under oath that when Dye signed
the mutual release it was their
understanding, as a result of the plea
negotiations with the prosecutor, that
the waiver would indeed affect the plea
negotiations and that Dye would receive a
more favorable plea agreement in exchange
for it. The majority seizes on the word
"understanding" as a way of dismissing
this testimony, but I would not reject it
so readily. Nothing says that only
written evidence is competent for Rumery
purposes to illuminate the course of the
negotiations that led to the contested
release. And a factual exploration of
these negotiations would not raise the
specter of a mini-trial on the underlying
lawsuit between Dye and Wargo that the
release was designed to avert. It is
reasonable to infer from the testimony
Dye and his lawyer offered that the
prosecutor led Dye to believe that he
would receive a more favorable plea
agreement if he signed the release. There
is no dispute that Dye received no such
benefit.

  Under traditional contract law, the fact
that one party made promises during
negotiations that later were not
reflected in the plain language of the
contract would not be a basis for voiding
the contract on voluntariness grounds.
But again, the question here is not
whether the waiver is valid as a matter
of contract law, but rather whether, as a
matter of public policy, it should be
enforced. For purposes of this analysis,
as Rumery makes clear, the question of
voluntariness is akin to the standards of
"voluntary and knowing" in plea
negotiations. And in the plea context, as
Fed. R. Crim. P. 11(d) takes pains to
emphasize, a court is not entitled to
accept any plea of guilty until it
determines that the plea was voluntary.
Enforceability of a plea agreement under
state contract law is entirely beside the
point.


  B.   Legitimate Prosecutorial Purpose

  In upholding the agreement before it,
Rumery also relied on the fact that "the
prosecutor had an independent, legitimate
reason to make this agreement directly
related to his prosecutorial
responsibilities." Id. at 398. This
finding was critical because all the
Justices that joined the majority (and
even more so the four dissenting
Justices) recognized the risk that
release-dismissal agreements could be
abused by prosecutors seeking to protect
public officials from civil liability. As
Justice O’Connor explained in her
concurrence, the availability of release
agreements may tempt public officials to
trump up charges in order to avoid
meritorious civil claims, or tempt them
"to ignore their public duty by dropping
meritorious criminal prosecutions in
order to avoid the risk, expense, and
publicity of a sec.1983 suit." Id. at
400.

  In this case, Wargo’s only evidence of
a "legitimate reason to make [the waiver]
agreement directly related to
prosecutorial responsibilities" is that
the idea of a waiver was Dye’s and that
the prosecutor told Dye that it would not
be considered as part of the prosecutor’s
charging decision. Again, however, the
latter claim is disputed by the testimony
of both Dye and the attorney that
represented him in the plea negotiation
with the prosecutor. Reading the record
in the light most favorable to Dye, we
have before us a case where the
prosecutor encouraged Dye to sign a
waiver agreement with the understanding
that his having done so would improve his
plea bargain, but that the prosecutor
then went back on that verbal promise.
The only reason why a prosecutor would
use such a strategy is to induce a
vulnerable defendant to sign a waiver
that would shield public officials from
future liability while at the same time
not giving up any discretion to
prosecute. This is neither a legitimate
purpose nor one directly related to
prosecutorial responsibilities. Instead,
it smacks of bad faith negotiations at
best, fraud in the inducement to contract
at worst. A waiver obtained by this route
cannot, as a matter of public policy, be
enforced.

  C.   The Public Interest

  Rumery recognizes that there is a
substantial public interest in using
sec.1983 to expose and punish
unconstitutional conduct by public
officials. There is also a substantial
interest in not approving practices that
have a tendency to undermine the
integrity of the criminal justice system.
On the other hand, the public has an
interest in avoiding frivolous civil
litigation, and there will be situations
in which entering into a release-
dismissal agreement will make sense both
from the defendant’s point of view and
from the point of view of prosecutors
with limited resources and other
strategic concerns.

  If the undisputed facts showed that Dye
freely executed this release; if the
release had been presented to the court
and everyone’s expectations about it had
been clear; if there was no dispute about
the central fact of the scope of the
prosecutor’s promise (i.e. whether the
release would affect the criminal charges
or not), I could agree with the
majority’s disposition of this case. And
these counter-factuals show that there
certainly will be cases that satisfy the
Rumery standards--possibly many, if both
sides take care to make an adequate
record when they wish to use release-
dismissal agreements. But the case I have
described is not Dye’s case. I would
remand this part of the case to the
district court for a full factual
exploration of the circumstances
surrounding the release. After that, it
might be possible to dispose of matters
at a second round of summary judgment
motions, or a trial might be necessary. I
respectfully dissent from this part of
the judgment.
