Tirreno v. MottTirreno v. Mott
Plaintiffs appeal from a final judgment entered after a jury verdict in favor of defendants on plaintiffs’
On appeal, plaintiffs contend that the district court erred in (1) instructing the jury that plaintiffs bore the burden of proving that they had not consented to the challenged sеarch, and (2) adopting a jury interrogatory to the same effect. Because plaintiffs failed to object to thе relevant portions of the jury charge and verdict sheet before the verdict, our review is limited to plain error аffecting substantial rights. See
Plaintiffs contend that they are entitled to de novo review because they specifically requested that the jury be instructed that defendants bore the burden of proving consent. This argument is foreclosed by the language of
Nowhere “on the record” did the district court discuss the assignment of the burden of proof on the issue of consent, muсh less “definitive[ly]” rule on plaintiffs’ requested instruction assigning the burden to defendants. What is on the record is the district court‘s thoughtful and extensive discussion with counsel, both before and after their closing arguments, of a range of issues relating to the jury‘s considеration of the consent issue. While plaintiffs asked a number of questions, offered various suggestions, and raised certain objections to the proposed instructions and verdict
“To constitute plain error, a court‘s action must сontravene an established rule of law.” Lavin-McEleney v. Marist Coll., 239 F.3d 476, 483 (2d Cir.2001) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); cf. United States v. Polouizzi, 564 F.3d 142, 156 (2d Cir.2009) (“An error is plain if the ruling was contrary to law that was clearly established by the time of the appeal.” (internal quotation marks omitted)). That is not this case because, as plaintiffs acknowledge, the law of this Circuit is not clear in assigning the burden of proof regarding consent in a § 1983 action for unlawful search. In Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir.1991), a § 1983 aсtion, we expressly rejected the argument that once a plaintiff established that a search was not authorized by a warrant, the burden shifted to the defendant to prove that the search was justified by one of the warrant exceptions such as consent, see id. at 563. The presumption of unreasonableness applicable to warrantless searches “cannot serve to place on the defendant the burden of proving that the official action was reasonable.” Id. Rather the presumption imposes only a burden of production, i.e., “the duty of producing evidence of consent.” Id. “[T]he ultimate risk of nonpersuasion must remain squarely on the plaintiff in accordance with established princiрles governing civil trials.”2 Id.
This court has never overruled Ruggiero and continues to cite it approvingly. See, e.g., Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir.1998) (distinguishing between criminal and civil cases as to which party bears burden of proof when reasonаbleness of warrantless search is at issue). Nevertheless, we failed to distinguish it or even to cite it in Anobile v. Pelligrino, 303 F.3d 107 (2d Cir.2002), a § 1983 case relied оn by plaintiffs here for its conclusory observation that “[t]he official claiming that a search was consensual has the burden of demonstrating that the consent was given freely and voluntarily,” id. at 124 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (articulating government‘s burden in criminal case on motiоn to suppress evidence of warrantless search)).
We need not here attempt to reconcile any apparent tension in our precedents. On plain error review, it is enough to conclude that plaintiffs cannot show that clearly established precedent imposed the burden of proving consent on the defendants. Accordingly, we decline to vacate the judgment.
We have considered plaintiffs’ remaining arguments on appeal and conclude that they are without merit. For the foregoing reasons, the December 21, 2007 judgment of the district court is AFFIRMED.