3d Cir. Model Jury Instr. (Civil) 4.7.3

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Last updated March 2026

The defense must also show “that upon balance the public interest favors enforcement.” 1

Cain, 7 F.3d at 381; see also Livingstone , 12 F.3d at 1215 (discussing possible public interest 2

rationales for releases); Livingstone , 91 F.3d at 527 (noting the “countervailing interest ... in 3

detecting and deterring official misconduct”); id. at 528-29 (assessing possible rationales).118 “The 4

standard for determining whether a release meets the public interest requirement is an objective 5

one, based upon the facts known to the prosecutor when the agreement was reached.” Cain, 7 F.3d 6

at 381. Moreover, “the public interest reason proffered by the prosecutor must be the prosecutor's 7

actual reason for seeking the release.” Id.; see also Livingstone, 91 F.3d at 530 n.17. If, instead, 8

“the decision to pursue a prosecution, or the subsequent decision to conclude a release -dismissal 9

agreement, was motivated by a desire to protect public officials from liability,” the release should 10

not be enforced. Livingstone, 91 F.3d at 533.119 11

12

“[P]rotecting public officials from civil suits may in some cases provide a valid public 13

interest and justify the enforcement of a release- dismissal agreement.” Cain, 7 F.3d at 383. But 14

“there must first be a case- specific showing that the released civil rights claims appeared to be 15

marginal or frivolous at the time the agreement was made and that the prosecutor was in fact 16

motivated by this reason.” Id.120 Whether the claims appeared to be marginal or frivolous should 17

be assessed on the basis of the information that the prosecutor “knew or should have known ” at 18

the time. Livingstone, 91 F.3d at 532. If the claims did appear marginal or frivolous based on the 19

information that the prosecutor knew and/or should have known, the court should then address 20

“the further question whether enforcement of a release -dismissal agreement in the face of 21

substantial evidence of police misconduct would be compatible with Rumery and Cain, 22

notwithstanding that the evidence of misconduct was not known, or reasonably knowable, by the 23

prosecutor at the time.” Livingstone, 91 F.3d at 532. 24

118 See also Seth F. Kreimer, Releases, Redress, and Police Misconduct: Reflections on

Agreements to Waive Civil Rights Actions in Exchange for Dismissal of Criminal Charges, 136 U.

Pa. L. Rev. 851, 928 (1988) (noting that release -dismissal agreements pose “a substantial cost to

first amendment rights, the integrity of the criminal process, and the purposes served by section

1983”).

119 “[T]he concept of prosecutorial misconduct is embedded in [the] larger inquiry into

whether enforcing the release would advance the public interest.” Cain, 7 F.3d at 380.

120 “As a general matter, civil rights claims based on substantial evidence of official

misconduct will not be either marginal or frivolous. But this may not be true in every case. For

instance, if the official involved would clearly have absolute immunity for the alleged misconduct,

then a subsequent civil rights suit might indeed be marginal, whether or not there is substantial

evidence that the misconduct occurred.” Livingstone, 91 F.3d at 530 n.18.