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

                                                3
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

                                               4
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.

                                               5
       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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