Anthony H. Dye v. William B. Wargo, Jr., K-9 Named Frei, and City of Elkhart, Indiana ( 2001 )

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. § 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 semiautomatic 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 Elk-hart 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 § 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 complaint.

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, 119 S.Ct. 1597, 143 L.Ed.2d 966 (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 § 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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1988), and excessive force under the fourth amendment is not one of those constitutional torts. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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, 109 S.Ct. 1197; 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, 105 S.Ct. 2427, 85 L.Ed.2d 791 (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 War go or Frei evinces a policy of using constitutionally improper force.

As for Frei: § 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, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Under the Dictionary Act, 1 U.S.C. § 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. Kala-maros, who purports to represent all three defendants? Was Frei offered the right of self-representation under 28 U.S.C. § 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, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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 § 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 superi- or 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. § 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. Dubois 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 Elk-hart’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, 107 S.Ct. 1187, 94 L.Ed.2d 405 (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 § 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 § 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 § 1983. See also Evans v. Jeff D., 475 U.S. 717, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986) (plaintiff may agree to forego attorneys’ fees under 42 U.S.C. § 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. § 216(c). Waivers and releases serve the interests of both parties: a waivable right is more valuable to its holder than is a non-waiva-ble 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, 115 S.Ct. 797, 130 L.Ed.2d 697 (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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984).

Affirmed