CA6: In § 1983 case, exceptions to warrant requirement aren’t likely affirmative defenses to plead

Exceptions to the warrant requirement do not appear to be affirmative defenses required to be pled in a § 1983 case under F.R.C.P. 8(c) waived by not pleading in first response. Szappan v. Meder, 2023 U.S. App. LEXIS 19485 (6th Cir. July 26, 2023):

There appear to be reasons to doubt Szappan’s assertion that exceptions to the Fourth Amendment’s warrant requirement are affirmative defenses subject to waiver under Rule 8(c): they are not “analogous to or a derivative of one of the listed defenses,” and they do not operate extraneously to plaintiff’s claim. Id. But we need not decide this issue, for defendants correctly note that Szappan’s failure to object to the jury being instructed on these exceptions renders his claim of error forfeited on appeal. See, e.g., Libbey-Owens-Ford Co. v. Ins. Co. of N. Am., 9 F.3d 422, 427-28 (6th Cir. 1993); see generally Swanigan v. FCA US LLC, 938 F.3d 779, 786 (6th Cir. 2019) (“[A]rguments raised for the first time on appeal are forfeited.” (citation omitted)).