IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION

JACK MILLER, ANNABEL CAMPBELL, §

MATTHEW PESINA, LISA PESINA, M.P., a §

Minor and J.G., a Minor, §

§

Plaintiffs, §

§

V. §

§

CHIEF JOSEPH SALVAGGIO, In His §

Individual and Official Capacities, § CIVIL ACTION NO. 20-cv-00642 JKP

OFFICER JIM WELLS, In His Individual and §

Official Capacities, OFFICER ANDERSON, §

In His Individual and Official Capacities, §

OFFICER SAUCEDO, In His Individual and §

Official Capacities, OFFICER J. VASQUEZ, §

In His Individual and Official Capacities, §

STATE POLICE OFFICER JOHN DOE, In His §

In His Individual and Official Capacities, §

BEXAR COUNTY MAGISTRATE, In Their §

Individual and Official Capacities, §

KIRBY POLICE DEPARTMENT and §

LEON VALLEY POLICE DEPARTMENT, §

Jointly and Severally, §

§

Defendants. §

__________________________________ §

DEFENDANTS CITY OF LEON VALLEY POLICE OFFICERS BROOKS, KING,

MUNOZ AND RIVERA’S REPLY IN SUPPORT OF THEIR MOTION TO DISMISS

TO THE HONORABLE UNITED STATES DISTRICT JUDGE JASON PULLIUM:

NOW COMES CITY OF LEON VALLEY POLICE OFFICERS BROOKS, KING, MUNOZ, and

RIVERA, Individually, Defendants in the above entitled and numbered cause, and files this their 

Reply in Support of their Motion to Dismiss (Doc. 16) pursuant to Rule 12(b)(6) FEDERAL RULES 

OF CIVIL PROCEDURE and in support thereof would respectfully show unto the Court the following:

Case 5:20-cv-00642-JKP Document 20 Filed 12/23/20 Page 1 of 4
_______________________________________________________________________________________________________

Jack Miller, et al v. Chief Joseph Salvaggio, et al Civil Action No. 5:20-cv-00642-JKP

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA Reply in Support of their Motion to Dismiss Page 2

I.

Defendant CITY OF LEON VALLEY POLICE OFFICERS BROOKS, KING, MUNOZ, AND 

RIVERA, have asserted their entitlement to qualified immunity under both prongs of the qualified 

immunity defense. Defendants assert qualified immunity for all claims made the basis of Plaintiffs’ 

First Amended Complaint. Plaintiffs’ claims of First Amendment retaliatory arrest, Fourth 

Amendment unlawful entry, Fourth Amendment excessive force and Fourth Amendment malicious 

prosecution are the basis for Plaintiffs’ federal claims. Plaintiffs allegations of retaliatory 

prosecution, failure to intervene and conspiracy under 42 U.S.C. § 1983 are derivative of the original 

claims and are subject to the qualified immunity analysis. 

II.

The case at bar concerns Plaintiff Jack Miller’s actions in entering the City of Leon Valley 

City Hall/Municipal Court Building carrying what he alleges was a “Fake Gun” in a holster in 

plain view. In Texas, a person commits an offense if he intentionally possesses a firearm on the 

premises of a governmental court (municipal court) under TEXAS PENAL CODE, Chapter 46, § 

46.03. Plaintiff Miller’s own provocative acts lead to the execution of a search warrant signed by 

a magistrate judge. 

Plaintiff Miller responds that his civil rights were violated under the First and Fourth 

Amendment to the Constitution by the execution of the search warrant since he was only carrying 

a “Fake Gun”. Who is to determine whether or not it was a “fake gun” simply because Plaintiff 

Miller alleges it was not an operable weapon capable of discharging a bullet? Plaintiff Miller’s 

own intentional provocative acts led to the execution of a search warrant for the firearm in 

question. Miller’s own actions gave rise to probable cause for violating TEXAS PENAL CODE, 

Chapter 46, § 46.03.

Plaintiffs’ claims of excessive force for drawing weapons during the course of the search 

fails to allege a violation under the Fourth Amendment. Excessive force claims under the Fourth 

Case 5:20-cv-00642-JKP Document 20 Filed 12/23/20 Page 2 of 4
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Jack Miller, et al v. Chief Joseph Salvaggio, et al Civil Action No. 5:20-cv-00642-JKP

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA Reply in Support of their Motion to Dismiss Page 3

Amendment require a showing of (1) an injury; (2) which resulted directly and only from the use 

of force that was excessive to the need; and (3) that the force used was objectively unreasonable. 

Bush v. Strain, 513 F.3d 492, 500 (5th Cir. 2008). The fact that the Defendant Officers exhibited 

their weapons and pointed the weapons at the occupants of the home, does not state a cause of 

action under the Fourth Amendment. Strickland v. City of Crenshaw, Miss., 114 F.Supp.3d 400, 

417 (N.D. Miss. 2015).

Defendants CITY OF LEON VALLEY POLICE OFFICERS BROOKS, KING, MUNOZ, AND 

RIVERA, assert unto the Court that their actions did not violate Plaintiffs’ Constitutional rights as 

alleged in Plaintiffs’ Original Complaint. Plumhoff v. Ricard, ___ U.S. ___ 134 S.Ct. 2012, 2023

(2014). Defendants further assert that based on the totality of the circumstances, their action were 

not objectively unreasonable and therefore, they are entitled to the protective shroud of qualified 

immunity. Mullinex v. Luna, 577 U.S. ___ 136 S.Ct. 305, 308 (2015). 

WHEREFORE, PREMISES CONSIDERED, CITY OF LEON VALLEY POLICE OFFICERS 

BROOKS, KING, MUNOZ, AND RIVERA, pray that their Motion to Dismiss be in all things granted 

and for such other and further relief as they may show themselves justly entitled.

Respectfully submitted, 

LAW OFFICES OF CHARLES S. FRIGERIO 

A Professional Corporation 

Riverview Towers 

111 Soledad, Suite 840 

San Antonio, Texas 78205 

(210) 271-7877 

BY: /s/ Charles S. Frigerio 

CHARLES S. FRIGERIO 

SBN: 07477500

LEAD COUNSEL IN CHARGE 

Case 5:20-cv-00642-JKP Document 20 Filed 12/23/20 Page 3 of 4
_______________________________________________________________________________________________________

Jack Miller, et al v. Chief Joseph Salvaggio, et al Civil Action No. 5:20-cv-00642-JKP

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA Reply in Support of their Motion to Dismiss Page 4

HECTOR X. SAENZ 

SBN: 17514850 

ATTORNEYS FOR DEFENDANTS

CHIEF JOSEPH SALVAGGIO, OFFICERS JIM WELLS,

ANDERSON, SAUCEDO, J. VASQUEZ, BROOKS,

KING, MUNOZ and RIVERA

CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of December, 2020, I electronically filed the foregoing 

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA’s Reply in Support of its Motion to 

Dismiss with the Clerk of the Court using the CM/ECF system which will send notification of 

such filing to the CM/ECF Participant as follows : 

Mr. Solomon M. Radner

JOHNSON LAW, PLC 

535 Griswold St., Suite 2632 

Detroit, MI 48226 (313) 324-8300 Email: sradner@venjohnsonlaw.com

/s/ Charles S. Frigerio 

CHARLES S. FRIGERIO 

Case 5:20-cv-00642-JKP Document 20 Filed 12/23/20 Page 4 of 4