Dissenting.
I agree with the well-written majority opinion on all points except the question relating to the release-dismissal agreements. Because I believe that the agreements should have been enforced, I respectfully dissent from that portion of the majority’s opinion.
In the two cases cited by the majority, Coughlen v. Coots, 5 F.3d 970 (6th Cir. 1993), and Town of Newton v. Rumery, 480 U.S. 386, 387, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), both the United States Supreme Court and this court noted that permitting certain releases “may tempt public officials to bring frivolous criminal charges in order to deter meritorious civil complaints.” Coughlen, 5 F.3d at 973 (quoting Rumery, 480 U.S. at 400) (empha*706sis supplied). This court also noted in Coughlen that evidence of police misconduct should factor into the analysis and agreements “should be scrutinized closely in cases where substantial evidence supports an allegation of police misconduct. ...” Id. at 974 (emphasis supplied). The following examples of police misconduct were cited by the court:
• following use of excessive force, police officers file unfounded criminal charges to cover up their own conduct or force the victims to give up their causes of action; and
• prosecutors, aware of a victim’s meritorious civil claim, thereafter file unfounded criminal charges to protect police officers.
Id. (citing O’Connor’s concurrence in Rumery, 480 U.S. at 400) (emphasis supplied).
Given the language of these cases, I believe that there are two required findings in a case such as this: (1) that the plaintiffs have a meritorious civil cause of action; and (2) that the criminal charges brought against them were unfounded. Based upon the jury’s finding of excessive force by Officer Kifer, the first element appears to be met in this case. However, I do not believe that the facts show the criminal charges against Becky and Robert Friebis to have been unfounded. An independent eyewitness to the events was available to testify against these appellants and apparently would have told a story very different from theirs, a story that would have supported Officer Kifer’s version of events. Further, the court below specifically noted the excessive force was used “in the execution of the legitimate and lawful arrest” of the appellants.
Finally, I believe the facts of this case to be much closer to those presented in Hill v. City of Cleveland, 12 F.3d 575 (6th Cir.1993), wherein the appellant was represented by counsel, she was not in custody, she had time to consider the idea of a release in general, and the agreement was reviewed by and executed under the supervision of a judge.
Because I do not believe the charges against the appellants to have been unfounded or artificially trumped up, I do not believe that there was any police or prosecutorial misconduct with respect to the signing of the release in this case and, therefore, the release-dismissal agreements should have been enforced.