Dropping a Civil Lawsuit in Exchange for Dismissal of Criminal Charges

In some cases, a criminal defendant agrees to give up a lawsuit if the prosecution drops charges.

The Civil Rights Act of 1871 allows people to sue the government for a violation of rights at the hands of government agents. (42 U.S.C. § 1983.) For example, a victim of police brutality can sue the relevant city’s police department.

Many civil rights violations occur during or after arrest. The practical implication is that a defendant in criminal court may simultaneously be a plaintiff in civil court. In this kind of situation, it may make sense for each side to relinquish its claim in exchange for the other doing the same—that is, the government dismissing criminal charges and the citizen dropping or foregoing a civil lawsuit.

Power Imbalance

The typical defendant in a civil rights suit, usually the government or law enforcement agents, has far more power than the plaintiff. By hanging criminal charges over the plaintiff's head, the government may be able to coerce him or her into dropping a viable suit. For this reason, the U.S. Supreme Court set out factors for courts to consider in determining whether a civil rights release-dismissal agreement is valid. (Newton v. Rumery, 480 U.S. 386 (1987).) Courts are to consider:

  • whether the agreement was voluntary
  • whether the agreement contradicts the public interest, and
  • whether any prosecutorial misconduct was involved in the criminal case.


An agreement is “voluntary” if the parties enter it freely. A court’s voluntariness inquiry focuses first on the civil plaintiff (who is also a criminal defendant), taking into account intelligence, education, experience, and sophistication level. The more capable the plaintiff is of understanding the agreement and its consequences, the more likely it is to be valid. Courts consider whether the plaintiff was:

  • represented by counsel
  • incarcerated, and
  • given enough time to fully weigh it.

Other considerations regarding voluntariness include:

  • who drafted the agreement
  • whether a judge supervised it
  • the nature of the charges to be dismissed by it
  • how closely the criminal charges are related to the facts underlying the civil suit
  • the strength of the criminal case
  • information or disinformation given by officials in the attempt to persuade the plaintiff
  • the clarity of the language in the agreement, and
  • whether the agreement was oral or in writing.

Public interest and prosecutorial misconduct

Keeping in mind that the government can use the threat of criminal charges for leverage, courts also evaluate whether a release-dismissal agreement is in the public interest. The chief consideration is whether there appears to be a legitimate basis for it.

There are several legitimate reasons for a prosecutor to enter into a release-dismissal agreement, like:

  • conserving public funds that would be expended in defending against a lawsuit of questionable merit
  • sparing possible trauma to potential witnesses who would otherwise have to testify, and
  • avoiding trial because crucial prosecution witnesses wouldn't be able to testify.

Ultimately, the goal of the public interest determination is to ensure that the agreement isn’t a “cover-up” of actual civil rights abuses by the government. That’s why courts want to know whether prosecutorial misconduct—for example, the withholding of exculpatory evidence—played a role in the agreement.


While arresting him for burglary, officers savagely beat Freddie. Freddie loses sight in one eye and has trouble breathing as a result. He hires a lawyer and initiates a civil rights suit against the officers and the city.

Because burglary is a serious charge and he has a prior record, Freddie’s bail is higher than he can afford. The District Attorney knows the case against Freddie isn’t strong, but also knows that Freddie wants to get out of jail. Not wanting news about Freddie’s beating to gain traction in the media over the course of a long civil rights suit, the prosecution promises to dismiss the burglary charge in exchange for Freddie dropping his suit. Wanting to get out and fearing the criminal charges, Freddie agrees.

But when he gets out, Freddie tries to go forward with the civil rights suit. The court presiding over the civil rights case finds the release-dismissal agreement invalid as contrary to the public interest: Keeping a legitimate civil rights claim out of the public eye isn’t a valid basis for this kind of settlement. So, the court allows the lawsuit to proceed.

Consult a Lawyer

Only a lawyer familiar with the law in your jurisdiction will be able to assess whether the prosecution might agree to release-dismissal, and whether a court would uphold such an agreement. If you face criminal charges, believe you have a valid civil rights claim, or both, consult a lawyer before signing away your rights. A knowledgeable criminal defense lawyer can advise you as to the strength of any criminal charges you face, while a lawyer specializing in personal injury or police misconduct should be able to assess the merits of a potential lawsuit.

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