Tirreno v. Mott , 375 F. App'x 140 ( 2010 )

08-2983-cv
Tirreno v. Mott
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 30 th day of April , two thousand ten.
PRESENT: REENA RAGGI,
PETER W. HALL,
Circuit Judges.*
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LAWRENCE B. TIRRENO, MARY H. TIRRENO,
PAULINA N. TIRRENO, CAROLYN M. TIRRENO,
Plaintiffs-Appellants,
v. No. 08-2983-cv
BARBARA MOTT, doing business as BARBARA’S
BAIL BONDS, JOHN H. POOLE, DENNIS A. PHANG,
JAMES E. FOLSTON, WESTPORT POLICE DEPT,
DONALD RICE, WALTER BROADHURST, TOWN OF
WESTPORT,
Defendants-Appellees.
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*
Judge Rosemary S. Pooler, originally assigned to this panel, did not participate in the
consideration of this appeal. The remaining two members of the panel, who are in
agreement, have determined this matter in accordance with Second Circuit Internal Operating
Procedure E(b).
APPEARING FOR APPELLANTS: DAVID N. ROSEN (Margaret Middleton, on the
brief), David Rosen & Associates, P.C., New
Haven, Connecticut.
APPEARING FOR APPELLEES: ROBERT C.E. LANEY, Ryan Ryan Deluca LLP,
Stamford, Connecticut, for Defendant-Appellee
Barbara Mott, doing business as Barbara’s Bail
Bonds.
ANDREW DEWEY (Claudia A. Baio, on the
brief), Baio & Associates, P.C., Rocky Hill,
Connecticut, for Defendants-Appellees Town of
Westport, Westport Police Department, Donald
Rice, and Walter Broadhurst.
Appeal from the United States District Court for the District of Connecticut (Robert
N. Chatigny, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on December 21, 2007, is
AFFIRMED.
Plaintiffs appeal from a final judgment entered after a jury verdict in favor of
defendants on plaintiffs’ 42 U.S.C. § 1983 claims alleging unreasonable search and seizure
in violation of the Fourth Amendment. We assume the parties’ familiarity with the facts and
the record of prior proceedings, which we reference only as necessary to explain our decision
to affirm.1
1
Although several of the named defendants in this appeal have failed to enter an
appearance, we note that the conclusions we reach herein apply with equal force to all
defendants, regardless of whether they appear.
2
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 search,
and (2) adopting a jury interrogatory to the same effect. Because plaintiffs failed to object
to the relevant portions of the jury charge and verdict sheet before the verdict, our review is
limited to plain error affecting substantial rights. See Fed. R. Civ. P. 51(d)(2).
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 Fed. R. Civ. P. 51(c)(1), which states that a “party
who objects to . . . the failure to give an instruction must do so on the record, stating
distinctly the matter objected to and the grounds for the objection,” and our decision in
Caruso v. Forslund, 47 F.3d 27, 31 (2d Cir. 1995), which holds that a party “may [not] rely
on her submission of proposed jury instructions” not adopted by the district court to preserve
an objection for appeal. Plaintiffs submit that strict enforcement of Rule 51 is not warranted
in this case because the district court’s assignment of the burden of proof to plaintiffs
constituted a “definitive ruling on the record” rejecting their requested instruction on the
merits. Fed. R. Civ. P. 51(d)(1)(B) (recognizing exception to rule that error may be assigned
to failure to give instruction only if party “properly requested it . . . and properly objected”).
We are not persuaded.
Nowhere “on the record” did the district court discuss the assignment of the burden
of proof on the issue of consent, much less “definitive[ly]” rule on plaintiffs’ requested
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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 consideration of the consent issue.
While plaintiffs asked a number of questions, offered various suggestions, and raised certain
objections to the proposed instructions and verdict sheet, at no point did they object to the
district court’s failure to instruct the jury that defendants bore the burden of proving consent.
On this record, we easily conclude that plaintiffs’ challenges to the jury instructions and
verdict sheet were unpreserved.
“To constitute plain error, a court’s action must contravene 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 (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 action, 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
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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 principles
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 reasonableness 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 on 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 (1973) (articulating government’s burden in
criminal case on motion 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.
2
There is no question that defendants carried their burden of production. Plaintiffs
effectively conceded that Lawrence Tirreno gave consent to search his residence. They
contended, however, that the consent was invalid because it was coerced by
misrepresentations and, in any event, negated by Mrs. Tirreno’s express refusal of consent.
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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.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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