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10-2170 Bogan v. City of Chicago

By: WISCONSIN LAW JOURNAL STAFF//July 6, 2011//

10-2170 Bogan v. City of Chicago

By: WISCONSIN LAW JOURNAL STAFF//July 6, 2011//

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Civil Rights
Warrantless search; exigent circumstances; burden of proof

In a civil rights trial alleging lack of exigent circumstances to justify a warrantless search, the plaintiff has the burden of proof.

“[W]e do not find the reasoning of the opinions on which Ms. Bogan relies persuasive. Ms. Bogan points to four court of appeals opinions in her reply brief: Hardesty v. Hamburg Township, 461 F.3d 646, 655 (6th Cir. 2006); Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996); Hopkins v. Bonvicino, 573 F.3d 752, 764 (9th Cir. 2009); and Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1070 (10th Cir. 2010). Each of these cases, without discussion, recites the proposition that ‘[t]he government bears the burden of proving that exigent circumstances . . . existed to justify a warrantless search,’ Hardesty, 461 F.3d at 655, and relies on a criminal case for support, see, e.g., id. (citing United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996)). However, for the reasons set forth in Valance and Ruggiero, employing a criminal burden of proof is contrary to ‘“established principles governing civil trials,”’ namely, that ‘“the ultimate risk of nonpersuasion must remain squarely on the plaintiff.”’ Valance, 110 F.3d at 1278 (quoting Ruggiero, 928 F.2d at 563).”

Affirmed.

10-2170 Bogan v. City of Chicago

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Ripple, J.

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