Sunday, July 10, 2011
Beast Of Burden: 7th Circuit Finds § 1983 Plaintiffs Bears Burden Of Proving Warrantless Search Not Justified By Exigency
Federal Rule of Evidence 301 provides that
In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
I haven't had the opportunity yet to discuss Rule 301 on this blog, but the recent opinion of the Seventh Circuit in Bogan v. City of Chicago, 2011 WL 2623504 (7th Cir. 2011), gives me my first chance.In Bogan,
Sharon Bogan brought [an] action under 42 U.S.C. § 1983, in which she claimed that two Chicago police officers, Matthew Breen and William Langley, had violated her rights under the Fourth Amendment of the Constitution of the United States when they entered and searched her home without a warrant.
After the jury returned a verdict in the officers' favor, Bogan appealed, claiming, inter alia,
that the district court's instruction on burden of proof constituted reversible error. According to Ms. Bogan, the burden of proof fell on the officers to establish that their actions were justified by exigent circumstances.
In response, the Seventh Circuit noted that
We have not addressed the precise question raised by this appeal: In a § 1983 warrantless-search action, in which the defendants claim that the search was justified based on exigent circumstances, which party bears the burden of proving the presence or absence of such circumstances?
But according to the court, in Valance v. Wiesel, 110 F.3d 1269 (7th Cir. 1997), it addressed the related question "of which party in a warrantless-search case bears the burden of establishing the plaintiff's consent—or lack of consent—to the search." In Wiesel, the Seventh Circuit noted that in Ruggiero v. Krzeminski, 928 F.2d 558 (2nd Cir. 1991), the Second Circuit held
that although a warrantless search generally is considered presumptively unreasonable, "[t]he operation of this presumption ... cannot serve to place on the defendant the burden of proving that the official action was reasonable." 928 F.2d at 563. The court concluded that at most, the presumption may require the defendant to produce evidence of consent or of some other recognized exception to the warrant requirement. Id. Yet once the defendant has done so, "the ultimate risk of nonpersuasion must remain squarely on the plaintiff in accordance with established principles governing civil trials." Id. (citing Fed.R.Evid, 301).
The Seventh Circuit agreed with this analysis in Wiesel, with its conclusion "informed by the nature of civil cases and the principle that, in civil cases, the plaintiff must bear the ultimate burden of nonpersuasion." Bogan tried to distinguish Wiesel by arguing that there is a "distinction between consent and exigent circumstances," but the Seventh Circuit disagreed, holding that
We do not find this distinction persuasive. No part of our analysis in [Wiesel] included reference to what information was uniquely available either to the plaintiff or to the defendant. Furthermore, Ms. Bogan does not point us to any Fourth Amendment cases for which this consideration played a role in determining the allocation of the burden of proof. To the contrary, as the Government demonstrates, other aspects of Fourth Amendment jurisprudence undermine Ms. Bogan's contention. For example, "a plaintiff claiming that he was arrested without probable cause carries the burden of establishing the absence of probable cause"...; however, whether an officer had probable cause for an arrest is wholly dependent upon the facts known to the officer at the time of the arrest.