CA8: Burden on plaintiff in § 1983 action for a warrantless arrest or search to disprove exceptions

Eighth Circuit joins majority of circuits and holds that the plaintiff in a § 1983 action for a warrantless arrest or search bears the burden of production, proof, and persuasion that no exception applies. [Omitted is fn.2 with a lot of citations.] Der v. Connolly, 666 F.3d 1120 (8th Cir. 2012):

Instead, as the district court correctly noted, this court “has not expressly decided who bears the burden of proof in a § 1983 action for a warrantless arrest or search.” Der, 2011 U.S. Dist. LEXIS 112748, 2011 WL 31498, at *2. We do so now. Two views currently prevail among our sister circuits. A majority of the circuits place the burden of proof on the plaintiff in a § 1983 action for a warrantless arrest or search, with some of those circuits imposing the burden of production on the defendant. A minority of the circuits place the burden of proof on the defendant in a § 1983 action. See, e.g., Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1070 (10th Cir. 2010) (stating, in the context of a § 1983 action, “[t]he officers bear the burden of establishing that the threats posed exigent circumstances justifying the warrantless entry”); Hardesty v. Hamburg Twp., 461 F.3d 646, 655 (6th Cir. 2006) (concluding the government bears the burden of proving the presence of exigent circumstances justifying the warrantless entry); Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996) (“To excuse the absence of a warrant, the burden rests on the State to show the existence of [exigent circumstances].”); Tarter v. Raybuck, 742 F.2d 977, 980-81 (6th Cir. 1984) (holding that school officials bore the burden of demonstrating a student’s voluntary relinquishment of the constitutional protection against unreasonable searches in light of the “presumption against the waiver of constitutional rights”); Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir. 1984) (commenting that, in a § 1983 action for malicious prosecution, the “defendants bear the burden at trial of proving the defense of good faith and probable cause”).

Having reviewed the relevant case authority, we agree with the majority of our sister circuits’ “formulation of the proper allocation of the parties’ burdens in a section 1983 action alleging a Fourth Amendment violation.” Valance, 110 F.3d at 1279. We have previously recognized that “plaintiffs ordinarily retain the burden of proof throughout the trial” in a suit “brought pursuant to 42 U.S.C. § 1983.” Clark v. Mann, 562 F.2d 1104, 1117 (8th Cir. 1977). Thus, “employing a criminal burden of proof [in a § 1983 civil action] is contrary to established principles governing civil trials, namely, that the ultimate risk of nonpersuasion must remain squarely on the plaintiff.” Bogan, 644 F.3d at 570 (quotations and citations omitted). As the Seventh Circuit explained, “[e]ven if a presumption of unreasonableness arises from the fact of a warrantless search [or entry], that does not serve in a civil case to shift ‘the burden of proof in the sense of the risk of nonpersuasion.’” Valance, 110 F.3d at 1279 (quoting Fed. R. Evid. 301). Instead, such “presumption merely serves to impose on the defendant ‘the burden of going forward with evidence to meet or rebut the presumption.’” Id. (quoting Fed. R. Evid. 301). A defendant may satisfy this burden of production by “produc[ing] evidence of consent or of some other recognized exception to the warrant requirement.” Id. at 1278. “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. (quoting Ruggiero, 928 F.2d at 563).