Der v. Connolly
| Decision Date | 05 January 2011 |
| Docket Number | Case No. 08-CV-6409 (PJS/JJG) |
| Parties | SANDRA DER and GORDON DER, individually and as parents and natural guardians for G.D., a minor, Plaintiffs, v. SEAN CONNOLLY, in his individual and official capacity; MIKE AMMEND, in his individual and official capacity; and ISANTI COUNTY, Defendants. |
| Court | U.S. District Court — District of Minnesota |
ORDER ON POST-TRIAL MOTIONS AND BILL OF COSTS
Joseph J. Walsh and Richard W. Curott, CUROTT & ASSOCIATES, LLC, for plaintiffs.
Jason M. Hiveley, IVERSON REUVERS, LLC, for defendants.
Plaintiffs Sandra Der and Gordon Der, on their own behalf and on behalf of their son, G.D., brought this action under 42 U.S.C. § 1983 and state law, seeking damages for injuries allegedly suffered when defendant Sean Connolly, a police officer, entered the Ders' house without a warrant in April 2008. The case was tried to a jury, which found in favor of Connolly. (The Ders' claims against defendants Mike Ammend and Isanti County were dismissed before trial.)
The Ders move for a new trial. Connolly seeks attorney's fees and costs.1 For the reasons that follow, the Court denies the Ders' new-trial motion, denies Connolly's motion for attorney's fees, and disallows certain expert-witness fees that Connolly seeks in his bill of costs.
In moving for a new trial, the Ders argue that the Court erred in eight different ways in its rulings before and during trial. Nothing that the Ders say in support of their new-trial motion persuades the Court that any of its earlier rulings was erroneous. Because the record in this case, including the transcripts of the pretrial conference and the trial, already reflects the Court's reasons for the rulings that the Ders challenge, the Court addresses only a few of the Ders' arguments, and those only briefly.
Three of the Ders' eight arguments relate to the appropriate legal standard for establishing a Fourth Amendment violation in a civil suit under 42 U.S.C. § 1983. According to the Ders, the Court erred in instructing the jury that the Ders had the burden of proving that their rights were violated. Instead, say the Ders, the Court should have instructed the jury that Connolly had the burden of proving that the rights of the Ders were not violated. Specifically, the Ders allege that the Court should have instructed the jury to presume that Connolly's warrantless entry into the Ders' home violated the Fourth Amendment and to find Connolly liable unless Connolly proved that his entry was justified by an exception to the warrant requirement.
As an initial matter, the Court notes that its ruling almost certainly had no impact on the jury's verdict. In a civil case in which a claim must be proved by a preponderance of the evidence, the burden of proof functions as a tie breaker. In this case, for example, the question of who had the burden of proof would have mattered only if the jury found that the weight of the evidence favoring a proposition was precisely the same as the weight of the evidence opposing that proposition. Only if the jury found such a "tie" would it matter who was assigned the burden of proof. The jurors in this case returned a quick and emphatic verdict that made it clear that they rejected the Ders' version of events and credited Connolly's. It is extremely unlikely that the jury turned to the burden of proof to break a "tie." Thus, under the circumstances of this case, the question of who had the burden of proof is likely academic.
That said, the Court is confident that it did not err in assigning the burden of proof to the Ders. This is a civil case, and, in a civil case, the plaintiff bears the burden of proof. There is no reason why a different rule should apply in § 1983 actions. To recover, the plaintiff must prove that she was "depriv[ed] of any rights, privileges, or immunities secured by the Constitution and laws...." 42 U.S.C. § 1983. If the plaintiff does not carry her burden, she should not be able to recover damages.
The Ders' theory would stand the normal rule on its head and place the burden of proof in a § 1983 action on the defendant. The plaintiff would merely need to file a § 1983 action against a defendant, and, unless the defendant could prove that he acted lawfully, the plaintiff would prevail. In this case, for example, the Ders would merely need to file a § 1983 action allegingthat Connolly's entry into their home was unlawful. At trial, the Ders would not need to offer any proof whatsoever that their allegation was true. Rather, they could sit back and demand that Connolly prove by a preponderance of the evidence that his actions were lawful. If Connolly failed to do so, the Ders would prevail.
The Court rejects the Ders' theory and instead follows the majority of federal appellate courts to have addressed the burden-of-proof question in § 1983 actions involving a warrantless search or arrest. Those courts — the Second, Fifth, Seventh, Ninth, and Eleventh Circuits — place the ultimate burden of proof entirely on the plaintiff, though some courts do impose on the defendant a burden of production.2
Only two federal appellate courts, the Third and Sixth Circuits, undisputably place the burden of proof on the defendant in a § 1983 action. Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir. 1984) (); Tarter v. Raybuck, 742 F.2d 977, 980 (6th Cir. 1984) (). The Massachusetts Supreme Court does likewise. Tyree v. Keane, 507 N.E.2d 742, 746 (Mass. 1987). And the Tenth Circuit has made an ambiguous statement that could be read to place on the defendant either the burden or proof or a burden of production. Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985) (). The minority of cases placing the burden on the defendant tend to be much older than the majority of cases placing the burden on the plaintiff.
The Eighth Circuit has not expressly decided who bears the burden of proof in a § 1983 action for a warrantless arrest or search, and language in Creighton v. City of St. Paul, 766 F.2d 1269 (8th Cir. 1985), can be read to support placing the burden on either the plaintiff or the defendant. Compare id. at 1272-73 () with id. at 1277 (). And in Huotari v. Vanderport, a § 1983 action challenging a warrantless search, Judge Heaney (sitting by designation as a district-court judge) said that "defendants' reliance on the defense of consent to validate the search places upon them the burden of proving that consent was, in fact, 'freely and voluntarily given.'" 380 F. Supp. 645, 648 (D. Minn. 1974). But tosupport this assertion, Judge Heaney cited only cases involving suppression in criminal proceedings. Id. Such cases are obviously distinguishable, given that, in a criminal case, the government clearly has the burden of proving that its evidence is admissible.
The Eastern District of Virginia has expressly rejected Huotari and Tarter in favor of the burden-shifting approach taken by the Second Circuit in Ruggiero v. Krzeminski, 928 F.2d 558, 563 (2d Cir. 1991). Amato v. City of Richmond, 875 F. Supp. 1124, 1134 (E.D. Va. 1994) ( ).
The Court likewise rejects Huotari. Again, a § 1983 action is a civil suit, and, as is almost always true in civil suits, the plaintiff bears the burden of proof. And even if the Court assumes, without deciding, that the defendant in a warrantless-search case bears a burden of production and must offer some evidence that a challenged search was lawful, this would not entitle the Ders to a new trial, because Connolly unquestionably met this burden of production when he testified at trial.
Connolly argued at trial that his warrantless entry into the Ders' home was justified by exigent circumstances. The Ders asked the Court to instruct the jury that a warrantless entry is justified by exigent circumstances only if those circumstances involve "danger to life or limb." See Mem. Supp. Pl. Mot. New. Trial at 7 [Docket No. 208]. This is clearly not the law.
According to United States v. Quezada, "[a] police officer may enter a residence without a warrant as a community caretaker where the officer has a reasonable belief that an emergency exists requiring his or her attention." 448 F.3d 1005, 1007 (8th Cir. 2006). In Michigan v. Fisher, the Supreme Court emphatically rejected the precise argument now made by the Ders — to wit, that the "emergency" justifying a warrantless entry must involve danger to life or limb:
Officers do not need ironclad proof of "a likely serious, life-threatening" injury to invoke the emergency aid exception. The only injury police could confirm in Brigham City [v. Stuart, 547 U.S. 398 (2006)] was the bloody lip they saw the juvenile inflict upon the adult. Fisher ...
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